[2025] UKUT 355 (AAC)

Notwithstanding that Mr Webb abandoned his argument that I had the power to set aside the Permission Disposal Decision under rule 43(2)(c), because I was persuaded to direct the oral hearing at least in part on the basis that there was value in the Upper Tribunal seeking to resolve the apparent conflict between the Upper Tribunal’s decisions in JC v SSWP and in JG v SSWP (in relation to the corresponding provision of the FtT SEC Rules, which is in substantially the same terms as rule 43(2)(c)), I shall address briefly the proper interpretation of rule 43(2)(c) and its application to the circumstances of this case.

The application for set aside under rule 43(2)(c) was initially put on the basis that that provision applied because the Permission Disposal Decision “disposes of the proceedings and was made in the absence of the parties”. However, that is to mis-state the test under rule 43(2)(c): that rule does not apply whenever the Upper Tribunal makes a decision “that disposes of proceedings in the absence of the parties”. Rather, it applies where “a party, or a party’s representative, was not present at a hearing related to the proceedings”. There is a difference.

In our case there was no oral hearing before the Upper Tribunal. The claimant’s solicitor, who completed the UT6 form, didn’t ask for one. In the UT6 form, where asked whether the claimant or his representative wished to have an oral hearing before the Upper Tribunal at permission stage, she ticked the “No” box and explained in the narrative box that the claimant was:

“content for the application for permission to be dealt with on the papers, including application for extension of time to appeal, unless it is considered necessary to hear from the [claimant] on any matter”.

This gives rise to the rather philosophical question of whether a party, or a party’s representative, can be said not to have been present at a hearing that didn’t take place.

In JC v SSWP Judge Turnbull pointed out that rule 1(3) of the UT Rules provides that the word “hearing” (where it appears in the UT Rules) means “an oral hearing and includes a hearing conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication”. Judge Turnbull decided that where a case was determined without any of the parties being entitled to be present, there was no “hearing” for the purposes of rule 37(2)(c) of the FtT Rules, even where the tribunal convened as a panel to decide the case on the papers. Judge Turnbull, who had given permission in that case, said (at [14]):

“I therefore think that it is clear that I was wrong, at the time of giving permission to appeal, in stating that Rule 37(2)(c) applied. It is in my view clear that it did not apply, because there was no oral hearing. That would plainly have been so if this had been a type of case heard by a First-tier Tribunal judge alone. In a case, such as the present, where the Tribunal comprises more than one member, there must in a sense be a hearing, but where the case is determined without any of the parties being entitled to be present, because a paper hearing has been elected for, there is in my judgment no “hearing” within Rule 37(2)(c).”

The editors of the 37^th edition of the CPAG Housing Benefit and Council Tax Reduction Legislation have criticised Judge Turnbull’s decision in the following terms:

“With respect to the judge, the point is not just whether “hearing” in rule 37(2)(c) means “oral hearing” (which, for the reasons given by the judge, it clearly does). The point is rather whether one can be “present” at an oral hearing which does not take place (which one equally clearly cannot). The salaried First-tier Tribunal judge to whom the application is referred must therefore ask themself, “Was the relevant party or representative present at a hearing related to the proceedings?” If no hearing has taken place, the answer to that question must be no, in which case why does the paragraph not apply?

This is not merely semantics. Interpreting para (2)(c) in the way the First-tier Tribunal is now bound to do creates an undesirable lack of flexibility in the application of the rule. Most salaried judges will have come across circumstances in which procedural injustice has occurred because a party has been ill-advisedly chosen to have a decision without a hearing but in which there has been no procedural irregularity within para (2)(d). The most obvious example occurs when the appellant (whose command of English may not be perfect), ticks the wrong box on the enquiry form, but there are many others. Reading para 2(c) as if it said “there has been a hearing related to the proceedings and a party, or a party’s representative was not present at it”, prevents the tribunal from doing justice in such circumstances, because there will be no ground for setting the decision aside, no matter how much it is in the interests of justice to do so.”

I disagree. In their commentary the editors make the same mistake that was made in the original application for set aside in these proceedings: misstating the test in the procedure rules. The editors say that the judge considering a set aside application must ask: “was the relevant party or representative present at a hearing related to the proceedings?”. However, the question that paragraph 2(c) requires them to ask is: “was the relevant party or representative not present at a hearing related to the proceedings?” That is a different question, and in a case such as this where there was no oral hearing, it demands a different answer.

Absence (or non-presence) can arise only in relation to an event. If there is no event, there can be no absence from it. One cannot fail to attend something that doesn’t occur. Just as it is clear to the editors of the CPAG Housing Benefit and Council Tax Reduction Legislation that one cannot be “present” at an oral hearing which does not take place, it is clear to me that one cannot “not be present” at an oral hearing which does not take place.

The Upper Tribunal considered the set aside provisions under the FtT SEC Rules again in JG v SSWP, a case in whichthe appellant (“JG”) had asked for his appeal to be determined on the papers. The First-tier Tribunal duly did so, dismissing JG’s appeal (the “JG Appeal Dismissal”). JG then made various applications, including an application that the JG Appeal Dismissal be set aside. He did not specifically reference rule 37(2)(c) or mention the fact that the JG Appeal Dismissal had been reached without a hearing. A salaried judge of the First-tier Tribunal set aside the JG Appeal Dismissal under rule 37(1)(a) and 37(2)(c) of the FtT SEC Rules on the basis that:

Correspondence followed, in which JG insisted he had never asked for an oral hearing of his appeal, and he couldn’t and wouldn’t attend any oral hearing. Rather convoluted proceedings followed, culminating in JG applying to the Upper Tribunal for permission to appeal a further decision of the First-tier Tribunal which purported to set aside the setting aside of the JG Appeal Dismissal.

One of the issues considered by the Upper Tribunal judge who dealt with the permission application was whether it was open to the First-tier Tribunal judge to set aside the JG Appeal Dismissal, finding that it was open to the First-tier Tribunal to make its decision setting aside the JG Appeal Dismissal, reasoning as follows (at [20]):

“The [JG Appeal Dismissal] was a final decision bringing JG’s appeal to an end. It therefore disposed of proceedings within the meaning of rule 37(1) of the [FtT SEC Rules]. The salaried judge assessed that JG’s situation satisfied the circumstances in rule 37(2)(c) of the [FtT SEC Rules] and that it was in the interests of justice to set aside the [JG Appeal Dismissal]. It was open to the salaried judge to use the power in rule 37 to make this decision.”

The judge appears to have accepted the First-tier Tribunal judge’s assessment that the conditions in rule 37(2)(c) were satisfied, rather than carrying out their own assessment of whether they were met, and the judge provided no analysis of the requirement that “ a party, or a party’s representative, was not present at a hearing related to the proceedings”.

JG v SSWP is a permission decision (not a substantive decision), and as such it has no authority as precedent. Perhaps for that reason, it provides only limited reasoning on rule 37(2)(c) and does not grapple with Judge Turnbull’s analysis in JC v SSWP. As such, I do not consider that it casts doubt on the continued applicability of JC v SSWP, which was correctly decided, and which the First-tier Tribunal should continue to follow.