[2024] UKUT 329 (AAC)

Was it open to the First-tier Tribunal under the FTT Rules 2008 to make its set aside decision dated 02 May 2024?

The starting point is that once the salaried judge set aside the final decision dated 24 January 2024 using rule 37(1), that decision no longer existed.

I have considered whether the FTT Rules 2008 allow a First-tier Tribunal to validly set aside the decision dated 20 February 2024 in the way the salaried judge attempted on 02 May 2024, and to restore the tribunal’s final decision dated 24 January 2024.

The First-tier Tribunal was created by an Act of Parliament and the powers it can exercise are set out in legislation. The FTT Rules 2008 were made using legislative powers given in the Tribunals, Courts and Enforcement Act 2007 (“the 2007 Act”). Rule 37 of the FTT Rules 2008 was made using a power in paragraph 15(2) of Schedule 5 to the 2007 Act to set aside decisions on procedural grounds. That power lists the four circumstances set out in rule 37(2)(a) to (d).

Paragraph 15(3) of Schedule 5 to the 2007 Act confirms that paragraph 15(2) does not prejudice (which means, limit) any power to set aside decisions that exists outside rule 37. For example, section 9(4)(c) of the 2007 Act gives the First-tier Tribunal the power to review one of its decisions under section 9(1) of that Act and to set that decision aside for containing an error of law. This power is provided for in rules 38 to 40 of the FTT Rules 2008.

The salaried judge did not use the error of law powers in rules 38 to 40 to set aside the 20 February 2024 decision. The 02 May 2024 decision does not identify any error of law in the 20 February 2024 decision or refer to reviewing and setting it aside on that basis. Furthermore, there was no clear application from JG for permission to appeal. His correspondence made clear he disagreed with the tribunal refusing his appeal on 24 January 2024. JG’s later emails received in March 2024 stated he did not want to attend a tribunal hearing. The outcome of setting aside the 20 February 2024 decision would be to reinstate the 24 January 2024 decision. However, there was nothing in JG’s emails to imply this was the outcome he wanted.

Turning to rule 37 of the FTT Rules 2008, the decision dated 20 February 2024 did not bring JG’s appeal to an end (dispose of proceedings). Instead, it removed the final decision previously made about JG’s appeal. This meant his appeal was, once again, a live appeal needing to be decided by a First-tier Tribunal. The 20 February 2024 decision therefore did not satisfy the requirement in rule 37(1). As a result, the First-tier Tribunal could not use the power in rule 37 to set it aside.

There are general case management powers in rule 5 of the FTT Rules 2008. Rule 5(1) gives a First-tier Tribunal power to regulate its own procedure, meaning it can decide how to apply its procedures in dealing with an appeal. However, the decision dated 02 May 2024 was not attempting to regulate the First-tier Tribunal’s procedure. Instead, it decided that an earlier decision no longer had any legal effect.

As set out at paragraph 13 above, rule 5(2) gives the First-tier Tribunal the power to give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction. The use of the word “including” means what follow afterwards are examples of the types of directions that can be given, rather than providing an exhaustive list. However, rule 5(2) is silent about being able to set aside an earlier decision (my emphasis added). In my assessment, rule 5(2) would need to provide specifically for setting aside a decision, to give the First-tier Tribunal the power to do so.

Furthermore, the action of setting aside a decision arguably requires the making of a decision to set it aside, rather than making a direction. The wording in rule 5(2) allows the First-tier Tribunal to make a direction setting aside earlier directions but does not confirm it can make a decision setting aside earlier decisions.

Rule 5(3) provides an illustrative list of how the case management powers in rule 5 might be used. None of those examples include setting a decision aside. I have taken into account that rule 5(3) is expressed as not restricting the general powers in rule 5(1) and (2). However, as explained above, the powers in rule 5(1) and (2) do not give the First-tier Tribunal a power to set aside its own decisions. Rule 5(3) does not change that position.

Rule 5 of the FTT Rules 2008 therefore did not give the First-tier Tribunal the necessary power to set aside the decision dated 20 February 2024, as it attempted to do on 02 May 2024.

The effect is that the tribunal’s decision dated 02 May 2024 was not made using a power provided under the FTT Rules 2008 and has no force or effect. The outcome is that the 20 February 2024 decision continues to apply, with the change made on 13 March 2024 that it will be decided on the papers. The consequence is that at present, there is no final decision by the First-tier Tribunal about JG’s appeal.

Why I have refused to admit JG’s application for permission to appeal

I have not admitted JG’s application for permission to appeal because there is no First-tier Tribunal decision that the Upper Tribunal can consider.

The tribunal’s decision dated 24 January 2024 was validly set aside on 20 February 2024. The First-tier Tribunal has therefore reached no final outcome in respect of JG’s appeal. It is for a new First-tier Tribunal to make a final decision about that appeal. I therefore direct for JG’s appeal to be returned to the First-tier Tribunal in order for that step to be taken.