[2023] UKUT 151 (AAC)

If the Upper Tribunal allows an appeal, it may (but need not) set aside the FTT’s decision (Tribunals, Courts and Enforcement Act (TCEA) 2007, section 12(2)(a)). If it does set aside the FTT’s decision, it must either remit for re-hearing or re-make the decision under appeal (TCEA section 12(2)(b)(i) and (ii)). If the decision is to remit, then the Upper Tribunal must stipulate “directions for its reconsideration” as to substantive legal matters (TCEA section 12(2)(b)(i)) and may also “give procedural directions in connection with the reconsideration of the case by the First-tier Tribunal” (TCEA 2007, section 12(3)(b)).

The Upper Tribunal’s directions on remittal must be followed by the FTT that re-hears the case, as that obligation is inherent in the concept of precedent (see e.g. BPP Holdings Ltd v Revenue & Customs Commissioners [2016] 1 WLR 1915 at [25]). As Upper Tribunal Judge Mesher observed in SD v Secretary of State for Work and Pensions (ESA) [2015] UKUT 116 (AAC) at paragraph 9:

The Upper Tribunal on 4 February 2021, in allowing the Appellant’s appeal against the FTT decision of 28 August 2019, had stipulated certain directions. The Upper Tribunal Judge’s directions included one to the effect that “the tribunal must investigate and decide the claimant’s entitlement to a personal independence payment on and from the effective date of 12 May 2018.” The FTT on 11 August 2021 made no mention of this direction, either in its decision notice or its statement of reasons. That said, a failure to follow an Upper Tribunal’s direction on remittal will not necessarily amount to an error of law (see SD v SSWP at paragraphs 8-10). In addition, even of the failure amounts to an error of law, it may not be a material error of law. This is demonstrated by the FTT’s confusion as to the correct date for the supersession decision to take effect.