Samuda v Secretary of State for Work and Pensions & Anor

This is an application by Mr Simon Samuda for permission to appeal the decision of the Upper Tribunal (Administrative Appeals Chamber) dated 8 November 2012 refusing to set aside its decision refusing to grant the applicant permission to appeal against the decision of the First-tier Tribunal dated 29 March 2012. Having heard the Applicant’s submissions, we decided that his application would be refused for reasons that would be given in writing subsequently. These are my reasons for refusing him permission to appeal.

This application arose from an application by the second respondent for variation of the decision of the Child Maintenance and Enforcement Commission that the applicant was liable to pay nothing per week for their daughter. The First-tier Tribunal (Social Entitlement Chamber) decided that her application for a variation should be allowed by reason of the applicant’s assets. The First-tier Tribunal also heard his appeal against the decision of the Commission that he was liable to pay £50 per week for his daughter.

It was common ground before the First-tier Tribunal that the applicant was the owner of a number of residential properties. He had provided to the Commission a list of those properties with figures for their values and the amounts owing on mortgages. He did not appear before the First-tier Tribunal, and did not provide it with evidence to substantiate the figures he had put forward, despite the direction of the Tribunal and its warning, as set out in its reasons for its decision, that in the absence of the information it required it might use the valuations provided by the Commission and would estimate the mortgage debts “using the usual buy-to-let percentage”, and that “the Tribunal was likely to make a maintenance assessment using 8% of the net equity”. The First-tier Tribunal made findings as to the market values of the properties and of the mortgage debts and decided the appeals before it on the basis of its findings. It determined that on the basis of his assets the second respondent‘s application for the variation of the applicant’s liability for his daughter should be allowed, with the result that he was liable to pay for his daughter the sum of £50 per week.

The applicant applied to the First-tier Tribunal for permission to appeal. The ground of his appeal was principally that the Tribunal had failed to take into account information he had provided. By its decision dated 11 July 2012 the Tribunal refused permission to appeal on the basis that it had been entitled to make the findings to which he objected by reason of his failure to provide the information it had required, and that he had been warned by the Tribunal of the possible consequences of his failure to provide it.

The applicant then applied to the Upper Tribunal for permission to appeal against the decision of the First-tier Tribunal. The Upper Tribunal refused permission to appeal in a determination dated 31 October 2012.

The applicant then made an application to the Upper Tribunal for it to set aside its refusal of permission to appeal. The Upper Tribunal refused to do so in a decision dated 31 October 2012. The applicant then applied to the Upper Tribunal for permission to appeal against that refusal. The Upper Tribunal refused to grant permission to appeal in its decision dated 22 January 2013. Paragraphs 5 to 8 of that decision are as follows:

“5.

Given that refusal to set aside determinations are not excluded decision under either section 11(5) or section 13(8) of the Tribunals, Courts and Enforcement Act 2007 (the “TCE Act”), and given the view of the three judge panel of the Upper Tribunal in LS v LB Lambeth (HB) [2010] UKUT 461 (AAC); [2011] AACR, that there is a right of appeal against any decision of the First-tier Tribunal that is not an excluded decision under section 11(5) of the TCE Act, I am prepared to accept for the purposes of this application that in theory at least it may be possible to challenge an Upper Tribunal’s refusal to set aside a determination of its own refusing permission to appeal from the First-tier Tribunal, even though the refusal of permission to appeal decision is not itself appealable: per s.13(8)(c) of the TCE Act.

6.

However, if the jurisdiction exists the focus of any enquiry as to an error of law (or important point of principle or practice, or other compelling reason) here must be in respect of the Upper Tribunal’s refusal to set aside determination, and that as the terms of rule 43 of Tribunal Procedure (Upper Tribunal) Rules 2008 make plain concerns the exercise of a narrow, procedural jurisdiction.

7.

I refuse permission to appeal to the Court of Appeal because no error of law in my approach as to whether to set aside my refusal of permission to appeal determination of 31.10.12 is identified by Mr Samuda in his application of for permission to appeal, nor is an error of law otherwise evident. In addition the proposed appeal against the Upper Tribunal’s refusal to set aside decision does not raise some important point of principle or practice about the Upper Tribunal’s rule 43 setting aside jurisdiction, and there is no other compelling reason for the Court of Appeal to hear this appeal. In the main what Mr Samuda is seeking to do, as he has done before, is to reargue the facts of the first-tier appeal, but he is now too late to do this; and in any event what he has to show is that the Upper Tribunal’s refusal to set aside (the refusal of permission to appeal) decision was wrongly arrived at and that he has not done.

8.

I therefore refuse permission to appeal. Having been refused permission to appeal by the Upper Tribunal, Mr Samuda may, of course, apply directly to the Court of Appeal for permission to appeal (assuming that Court has jurisdiction under the terms of section 13 of the TCE Act).”

The application to this Court is for permission to appeal the refusal of the Upper Tribunal to set aside its refusal of permission to appeal against the decision of the First-tier Tribunal.

The right of appeal from the First-tier Tribunal to the Upper Tribunal is conferred and governed by section 11 of the Tribunals, Courts and Enforcement Act 2007 (“the Act”) , which so far as relevant provides:

“(1)

For the purposes of subsection (2) , the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.

(2)

Any party to a case has a right of appeal…

(3)

That right may be exercised only with permission …

(4)

Permission … may be given by—

(a)

the First-tier Tribunal, or

(b)

the Upper Tribunal,

on an application by the party.”

A party aggrieved by a decision of the Upper Tribunal has potentially two means of recourse. He may ask the Upper Tribunal to review its decision, or he may seek to appeal to the Court of Appeal. The power of the Upper Tribunal to review its decisions is conferred by section 10:

“10.

Review of decision of Upper Tribunal

(1)

The Upper Tribunal may review a decision made by it on a matter in a case, other than a decision that is an excluded decision for the purposes of section 13(1) (but see subsection (7)).

(2)

The Upper Tribunal's power under subsection (1) in relation to a decision is exercisable—

(a)

of its own initiative, or

(b)

on application by a person who for the purposes of section 13(2) has a right of appeal in respect of the decision.

(3)

Tribunal Procedure Rules may—

(a)

provide that the Upper Tribunal may not under subsection (1) review (whether of its own initiative or on application under subsection (2) (b) ) a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules;

(b)

provide that the Upper Tribunal's power under subsection (1) to review a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules is exercisable only of the tribunal's own initiative;

(c)

provide that an application under subsection (2) (b) that is of a description specified for the purposes of this paragraph in Tribunal Procedure Rules may be made only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules;

(d)

provide, in relation to a decision of a description specified for the purposes of this paragraph in Tribunal Procedure Rules, that the Upper Tribunal's power under subsection (1) to review the decision of its own initiative is exercisable only on grounds specified for the purposes of this paragraph in Tribunal Procedure Rules.

(4)

Where the Upper Tribunal has under subsection (1) reviewed a decision, the Upper Tribunal may in the light of the review do any of the following—

(a)

correct accidental errors in the decision or in a record of the decision;

(b)

amend reasons given for the decision;

(c)

set the decision aside.

(5)

Where under subsection (4)(c) the Upper Tribunal sets a decision aside, the Upper Tribunal must re-decide the matter concerned.

(6)

Where the Upper Tribunal is acting under subsection (5), it may make such findings of fact as it considers appropriate.

(7)

This section has effect as if a decision under subsection (4)(c) to set aside an earlier decision were not an excluded decision for the purposes of section 13(1), but the Upper Tribunal's only power in the light of a review under subsection (1) of a decision under subsection (4)(c) is the power under subsection (4)(a) .

(8)

A decision of the Upper Tribunal may not be reviewed under subsection (1) more than once, and once the Upper Tribunal has decided that an earlier decision should not be reviewed under subsection (1) it may not then decide to review that earlier decision under that subsection.

(9)

Where under this section a decision is set aside and the matter concerned is then re-decided, the decision set aside and the decision made in re-deciding the matter are for the purposes of subsection (8) to be taken to be different decisions.”

Subsection (7) is irrelevant for present purposes. As can be seen, the Upper Tribunal has no power to review a decision which is an excluded decision for the purposes of section 13(1). What is an excluded decision for the purposes of section 13(1) is defined by section 13(8), which I shall set out below.

It is section 13 of the Act 2007 that confers the right of appeal from the Upper Tribunal to the Court of Appeal, which is for present purposes “the relevant appellate court” to which the section refers. So far as relevant, section 13 is as follows:

“(1)

For the purposes of subsection (2) , the reference to a right of appeal is to a right to appeal to the relevant appellate court on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision.

(2)

Any party to a case has a right of appeal, subject to subsection (14) .

(3)

That right may be exercised only with permission ….

(4)

Permission … may be given by—

(a)

the Upper Tribunal, or

(b)

the relevant appellate court,

on an application by the party.

(5)

An application may be made under subsection (4) to the relevant appellate court only if permission (or leave) has been refused by the Upper Tribunal.

(6)

The Lord Chancellor may, as respects an application under subsection (4) that falls within subsection (7) and for which the relevant appellate court is the Court of Appeal in England and Wales or the Court of Appeal in Northern Ireland, by order make provision for permission (or leave) not to be granted on the application unless the Upper Tribunal or (as the case may be) the relevant appellate court considers—

(a)

that the proposed appeal would raise some important point of principle or practice, or

(b)

that there is some other compelling reason for the relevant appellate court to hear the appeal.

(7)

An application falls within this subsection if the application is for permission (or leave) to appeal from any decision of the Upper Tribunal on an appeal under section 11.

(8)

For the purposes of subsection (1) , an “excluded decision” is—

(a)

…

(b)

…

(c)

any decision of the Upper Tribunal on an application under section 11(4)(b) (application for permission or leave to appeal) ,

(d)

a decision of the Upper Tribunal under section 10—

(i)

to review, or not to review, an earlier decision of the tribunal,

(ii)

to take no action, or not to take any particular action, in the light of a review of an earlier decision of the tribunal, or

(iii)

to set aside an earlier decision of the tribunal,

(e)

a decision of the Upper Tribunal that is set aside under section 10 (including a decision set aside after proceedings on an appeal under this section have been begun) , or

(f)

any decision of the Upper Tribunal that is of a description specified in an order made by the Lord Chancellor.”

It can be seen that a decision by the Upper Tribunal to refuse permission to appeal a decision of the First-tier Tribunal is an excluded decision by virtue of section 13(8)(c). The Upper Tribunal has no jurisdiction to review its decision to refuse permission to appeal to it by virtue of section 10(1) and 13(8)(d)(i). Any purported decision of the Upper Tribunal to refuse to review a decision to refuse permission to appeal to it from the First-tier Tribunal is in any event an excluded decision by virtue of section 13(8)(d)(i).

It follows that the Upper Tribunal had no jurisdiction to review its order dated 31 October 2012. Similarly, there can be no appeal to the Court of Appeal from a refusal of the Upper Tribunal to review its decision to refuse permission to appeal. This Court could not grant permission to appeal from that refusal. The only remedy of a party aggrieved by a decision of the Upper Tribunal to refuse permission to appeal is by way of judicial review, which is subject to the restrictions laid down by the Supreme Court in Cart.

I agree. Since we have determined a question of jurisdiction we give permission for this judgment to be cited, despite the fact that the application was an application for permission to appeal, pursuant to paragraph 6.1 of Practice Direction (Citation of Authorities) [2001] 1 WLR 1001.