Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 329 (AAC)

Fecha: 24-Ene-2024

The conditions are—

(2)

The conditions are—

(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 Tribunal 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.

(3)

A party applying for a decision, or part of a decision, to be set aside under paragraph (1) must make a written application to the Tribunal so that it is received no later than 1 month after the date on which the Tribunal sent notice of the decision to the party.”

11.

The salaried judge decided rule 37(2)(c) of the FTT Rules 2008 applied because JG stated he had wanted to attend a hearing of his appeal. Under rule 37(1)(a) of the FTT Rules 2008, the salaried judge decided it was also in the interests of justice to set aside the decision dated 24 January 2024. The salaried judge referred to the fact that JG had sent HMCTS other correspondence stating he was unable to think logically due to his mental health.

12.

The salaried judge set aside the decision dated 24 January 2024 and directed for an oral hearing of JG’s appeal to take place. At the bottom of the decision notice, the salaried judge wrote:

“A party is entitled to challenge any direction given by applying for another direction which amends, suspends or sets aside the first direction”.

13.

This wording reflects the case management powers given to the First-tier Tribunal by rule 5(2) of the FTT Rules 2008. Rule 5(2) provides:

“(2)
The Tribunal may 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.”

14.

After receiving the salaried judge’s decision dated 20 February 2024, JG wrote again to HMCTS. The appeal papers indicate HMCTS received correspondence from JG on the following dates:

(a)

On 27 February 2024, stating that when he had written he wanted a hearing, he meant an impartial hearing where his case would be looked at with(out) bias. JG wrote that he felt his mental health problems and anxiety meant he did not need to attend the tribunal as he had provided so much information (Addition N, page 1);

(b)

On 28 February 2024, stating he was not sure why the First-tier Tribunal had chosen the reason for the decision to be set aside based on the fact he could not attend the tribunal due to his ongoing mental health issues as opposed to the weakness of DWP’s information (Addition O, pages 1-2);

(c)

On 07 March 2024, stating he did not at any point send a letter or say he wanted to attend a tribunal in person, and he was referring in a previous letter (to the fact) that he wanted a tribunal that was impartial and fair, not biased (Addition P, page 1); and

(d)

On 13 March 2024, stating he had never said he wanted to attend a court tribunal. JG wrote that he was still waiting for a Statement of Reasons for the tribunal’s decision dated 24 January 2024. JG wrote he needed it ASAP. as he needed to understand the decision-making process (Addition Q, page 1).

15.

On 13 March 2024, a salaried judge made directions referring to JG’s correspondence that he did not want to attend any hearing of his appeal. The salaried judge directed for JG’s appeal to be determined on the basis of the papers. This amended the directions made on 20 February 2024. Alternatively, it set aside the direction made for an oral hearing to take place.

16.

On March 2024, HMCTS appeared to receive further correspondence from JG about his appeal (Addition S, page 2 of appeal bundle). I use “appeared” because the document is identical to JG’s correspondence marked as received on 13 March 2024, described at paragraph 14(d) above. It is possible that JG sent the same document twice to HMCTS and on 19 March 2024 he was responding to the directions made on 13 March 2024. Alternatively, it is possible that HMCTS recorded receiving a document twice when JG only sent it once.

17.

On 02 May 2024, a salaried judge made a decision referring to the appeal outcome decision made on 24 January 2024 and the set aside decision dated 20 February 2024. The salaried judge referred to JG’s correspondence received on 19 March 2024 and stated this made it clear that JG never wanted to attend a court tribunal and was asking for a Statement of Reasons to understand the decision-making process. The decision dated 02 May 2024 then stated:

“It is in the interests of justice to set aside the Set Aside decision of 20 February 2024 and for a Statement of Reasons to be provided.”

18.

The salaried judge did not specify a particular power in the FTT Rules 2008 to set aside the decision dated 20 February 2024. The overall wording used suggests the salaried judge may have applied the case management power in rule 5(2), set out in the wording at the bottom of the decision dated 20 February 2024.

19.

The tribunal provided JG with a Statement of Reasons for the decision dated 24 January 2024. On 10 June 2024, the First-tier Tribunal refused JG permission to appeal to the Upper Tribunal on the basis there was no error of law in the tribunal’s decision dated 24 January 2024.