[2025] UKUT 355 (AAC)

On 14 February 2025the claimant applied for the setting aside of the Permission Disposal Decision under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (the “UT Rules”). It was argued that, because the Permission Disposal Decision was made in the absence of the parties, rule 43(2)(c) of the UT Rules was engaged, and the sole question for the Upper Tribunal was therefore whether setting aside the Refusal to Admit would be in the interests of justice.

The claimant asked the Upper Tribunal to:

On 12 March 2025 I allowed the application for a rolled-up hearing and directed the parties to serve skeleton arguments. I explained my reasons for doing so as follows:

“16.

This application raises an issue on the proper interpretation of rule 43(2)(c), namely whether it applies only if there has actually been a “hearing” before the Upper Tribunal, or whether it can be relied upon where, as here, the Upper Tribunal has made the decision disposing of the proceedings on the papers.

17.

In JC v SSWP (DLA)[2013] UKUT 0171 (AAC) (“JC v SSWP”) the Upper Tribunal considered rule 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (the “FtT SEC Rules”). The wording of rule 37 of the FtT SEC Rules tracks the wording of rule 43 of the UT Rules, and indeed the wording of rule 35 of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008.

18.

In JC v SSWP, Judge Turnbull decided that the rule was applicable only in circumstances where a hearing had actually taken place, and not where the matter was decided on the papers only, because a party or a party’s representative cannot properly be said not to have been present at a hearing that didn’t take place.

19.

JC v SSWP is binding on the First-tier Tribunal, but it is not binding on the Upper Tribunal. The decision has been the subject of criticism in the commentary to the FtT Rules in the 37^th edition of the CPAG Housing Benefit and Council Tax Reduction Legislation, and the Upper Tribunal commented (obiter) in JG v SSWP[2024] UKUT 329 (AAC) that it had been open to the First-tier Tribunal judge in that case to set aside a paper determination under rule 37(2)(c) of the FtT SEC Rules.

20.

I consider that the holding of an oral hearing so that I can decide the matter in the context of the UT Rules, with the benefit of submissions from counsel, would best further the interests of justice…”