[2025] UKUT 355 (AAC)

The power of review (which brings a power of set aside) is available only in very limited circumstances, where the Upper Tribunal is considering whether to grant permission to appeal one of its own decisions. Even then, it is limited to circumstances in which the decision from which permission to appeal is sought is potentially inconsistent with a legislative provision or binding authority. In any event, it is not available in the case of a decision which is an “excluded decision” for the purposes of section 13(1) TCEA 2007, and section 13(8)(c) provides that a decision of the Upper Tribunal on an application under section 11(4)(b) (application for permission or leave to appeal) is an “excluded decision” for such purposes.

It was not argued that the power of review was available in this case.

Mr Webb relied instead on the Upper Tribunal’s powers under section 25 TCEA 2007, arguing that the question of whether to set aside the Permission Disposal Decision was a matter “incidental to the Upper Tribunal’s functions” (per section 25(2)(c) TCEA 2007), and so the Upper Tribunal enjoys the same powers that are available to the High Court in dealing with this application.

Mr Webb drew my attention to the Court of Appeal’s decision in R (on the application of Singh) v Secretary of State for the Home Department [2019] EWCA Civ 1014(“Singh”), which concerned a judicial review claim in the context of immigration proceedings. The circumstances of that case were that the Respondent’s counsel failed to appear at an oral hearing before the Upper Tribunal (Immigration and Asylum Chamber) to reconsider the matter of permission (permission having been refused on the papers). The judge proceeded with the hearing in the absence of counsel for the Respondent, apparently under a misapprehension that the Respondent had not intended to be represented. The judge granted permission in the Respondent’s absence. The judge later set aside her grant of permission (on a without notice application) and re-listed the matter for an oral hearing to give the Respondent’s counsel an opportunity to be heard. At the re-listed hearing the Upper Tribunal judge heard both counsel and ultimately refused permission. That refusal of permission was (by a rather circuitous route) appealed to the Court of Appeal on the ground that the Upper Tribunal had no power to set aside the grant of permission at the initial oral hearing.

Lord Justice Leggatt (as he then was), giving the judgment of the Court, considered the powers of the High Court and those of the Upper Tribunal. He said:

“The powers of the High Court

14.

There is no doubt that, if the proceedings had been in the High Court, the High Court would have had that power. CPR 23.11(2) confers an express power on the court, where the applicant or any respondent fails to attend the hearing of an application and the court makes an order at the hearing, to re-list the application. It is implicit in the power to re-list the application that the court can set aside the order made at the hearing, even after it has been perfected, re-hear the application in full and make such different orders as the Court thinks appropriate: see Riverpath Properties Ltd v Brammall (31 January 2000, unreported). Even without that rule, the High Court undoubtedly has power, as part of its inherent jurisdiction to manage its proceedings in a just and effective manner, to set aside an order made in a party’s absence and re-hear a matter if it subsequently appears that the party’s absence occurred as a result of a mistake for which it was not to blame. Indeed, to do otherwise in such circumstances would be to deny the absent party its fundamental common law right to participate in the proceedings in accordance with the principle of natural justice. It is a basic rule that the court must exercise its power to regulate its procedure in a way which respects that principle: see e.g. Al Rawi v Security Service [2011] UKSC 34; [2012] 1 AC 531, para. 22.

15.

Although CPR 54.13 provides that neither the defendant nor any other person served with the claim form may apply to set aside an order giving permission to proceed with a claim for judicial review, this rule does not prevent the High Court from exercising its inherent power to set aside an order made in circumstances where an interested party has not had a fair opportunity to be heard: see R (Webb) v Bristol City Counsil [2001] EWHC 696 (Admin); R (Enfield Borough Council) v Secretary of State for Health [2009] EWHC 743 (Admin), para. 3.

…

Section 25 of the 2007 Act

17.

It is not necessary to decide whether the Upper Tribunal has similar inherent powers to those of the High Court at common law or by virtue of its designation in section 3(5) of the Tribunals, Courts and Enforcement Act 2007 as a “superior court of record” because section 25 of that Act expressly confers such powers on the Upper Tribunal…”

Lord Justice Leggatt saw no reason to give section 25 TCEA 2007 a restrictive interpretation. He quoted the words of Martin Rodger KC, then Deputy President of the Upper Tribunal (Lands Chamber) in William Hill Organization Ltd v Crossrail Ltd [2016] UKUT 275 (LC) at para. 59:

“Parliament was obviously aware of the powers of the High Court, both those which are inherent, and those specifically conferred by statute. Section 25 therefore seems to me to be intended to be read literally and applied generally, and to invest the Upper Tribunal with the powers of the High Court in relation to all matters incidental to its functions; the critical limitation in section 25(2)(c) is supplied by the reference to the functions of the Tribunal, and does not depend on the source of the power or the terms in which it has been conferred on the High Court. Parliament could obviously make explicit an intention that the Upper Tribunal was not to possess a particular power, but where it has not done so, and where no express limitation has been imposed by tribunal procedure rules as contemplated by section 25(3)(b), the Upper Tribunal must be taken to have the same powers as the High Court in relation to all matters incidental to its functions.”

Lord Justice Leggatt found that, pursuant to sections 15 and 16 of TCEA 2007, one of the functions of the Upper Tribunal was to deal with applications for judicial review and, as an aspect of that function, to decide whether or not to grant permission to bring judicial review proceedings. He said:

“Considering whether to set aside a decision to grant such permission taken in the absence of the respondent and to re-hear the application is a matter incidental to this function. Pursuant to section 25 of [TCEA 2007], therefore, the Upper Tribunal has the same powers in dealing with the matter as would the High Court. It would be anomalous of the position were otherwise and if the Upper Tribunal, when exercising a judicial review jurisdiction similar to that of the High Court, lacked a power which the High Court has as an essential part of its procedural repertoire to manage its proceedings in a just and effective manner.”

Pursuant to section 11 of TCEA 2007, another of the functions of the Upper Tribunal is to consider applications for permission to appeal. Considering whether to set aside a decision concerning permission is a matter incidental to that function. However, there is an important difference between the present case and the case of Singh,because while there was an oral hearing before the Upper Tribunal in Singh, there was no oral hearing in the appeal before the Upper Tribunal in this case, and because the claimant, having opted to have his application dealt with on the papers, had no right to renew his application at an oral hearing.

Had these proceedings been in the High Court the power to re-list the claimant’s permission application under CPR 23.11(2) would not arise, because neither the applicant nor any respondent had failed to attend the hearing of an application.

Neither would the power arising from the High Court’s inherent jurisdiction to manage its proceedings in a “just and effective manner” identified by Lord Justice Leggatt arise, because that power is predicated on a party having been absent from a hearing “as a result of a mistake for which it was not to blame”.

Lord Justice Leggatt’s rationale for having such a power would not apply in the current case because the remedy of set aside not being available to the claimant does not deny him the “fundamental common law right to participate in the proceedings in accordance with the principle of natural justice”. The reason the Upper Tribunal did not hear from the claimant was not because of some mistake in which he had no part: it was because he declined the opportunity of an oral hearing by ticking the “No” box on his appeal form. In these circumstances it cannot be said that he has not had a fair opportunity to be heard.

Mr Webb argued that there “must” be an inherent power to set aside permission decisions made on paper. He said it would be curious were there to be no power to set aside a permission decision if, for example, following the decision it emerges that the applicant or the judge had made a fundamental mistake, or if the application had cited false authority or was otherwise fraudulent. However, I was not referred to any authority either for the proposition that there exists a general power to set aside a permission decision simply because that might be considered to be just, or a specific power to set aside a permission decision on the basis that a party had had no hearing where the reason for them not having had a hearing was that they had opted to have the matter determined on the papers. While Mr Webb placed reliance on Singh, as I have explained above it does not extend to a case such as this one.

In Singh Lord Justice Leggatt discussed Patel v Secretary of State for the Home Department [2015] EWCA Civ 1175 (“Patel”), another case concerning proceedings in the Upper Tribunal (Immigration and Asylum Chamber) which came before the Court of Appeal. In that case the Upper Tribunal judge granted permission to appeal the decision of the First-tier Tribunal at the start of the hearing and then began to hear the substantive appeal. When it became apparent that the appeal had been brought substantially out of time (a matter of which the judge had not been aware), the judge purported to revoke his decision to grant permission and to substitute for it a decision refusing permission. The Court of Appeal decided that the Upper Tribunal judge had had no power to reverse his decision on permission once he had uttered it. The Court of Appeal rejected an argument that the oral grant of permission was not a “decision” for the purposes of TCEA 2007. The Court in Patel acknowledged that the workings of the Upper Tribunal and the High Court differ: in the Upper Tribunal it is “decisions” that have legal force and from which an appeal lies, while in the High Court it is “orders”. While the effectiveness of a decision delivered orally in the High Court is qualified or postponed by the process of drawing up and perfecting the order implementing the decision, there is no equivalent procedure in the Upper Tribunal.

Lord Justice Leggatt acknowledged (in Singh at [34) that the inherent power of the High Court to vary or revoke a decision at any time before the order recording the decision is perfected is not a power that is capable of transposition to proceedings in the Upper Tribunal. He recognised that that is simply not the way that the Upper Tribunal works, and that the difference should be respected.

It follows from this reasoning that the powers, rights and privileges of the High Court that section 25 TCEA 2007 bestow on the Upper Tribunal do not require the Upper Tribunal to conform the way it carries out its functions to the way that the High Court does. So, where the UT Rules provide expressly for a right of oral renewal in respect of permission decisions in respect of proceedings in some chambers of the First-tier Tribunal but not in others, section 25 TCEA 2007 does not invest it with a power to set aside a decision on permission on the basis that the High Court may not operate such a distinction where a permission filter applies.

For these reasons, while I accept Mr Webb’s submission that rules 43 and 45 do not define the “outer limit” of the Upper Tribunal’s power to set aside its own decisions, because section 25 TCEA 2007 invests it with both the statutory and inherent powers of the High Court in relation to “all matters incidental to its functions”, I am not persuaded that there is a power enjoyed by the High Court and transposable to the Upper Tribunal, the exercise of which would permit the setting aside of the Permission Disposal Decision.

I therefore conclude that I have no power to set aside the Permission Disposal Decision.

Accordingly, I dismiss the application.