[2025] UKUT 355 (AAC)

The Upper Tribunal is a creature of statute. Its procedure derives from two sources: the TCEA 2007 and the UT Rules made pursuant to that Act.

Section 22 of TCEA 2007 provides for a Tribunal Procedure Committee to make Tribunal Procedure Rules governing the practice and procedure to be followed in the First-tier Tribunal and the Upper Tribunal.

Section 25 of TCEA 2007 provides for the Upper Tribunal to have supplementary powers in relation to certain matters. It reads:

“Supplementary powers of the Upper Tribunal

I set out below the provisions of the UT Rules that deal with the circumstances in which a decision of the Upper Tribunal on the matter of permission or admission may be revisited.

Rule 22 provides for a right to apply for oral reconsideration of a permission decision in certain circumstances and in certain species of appeal. It provides:

“Decision in relation to permission to appeal

22

…

(3)

Paragraph (4) applies where the Upper Tribunal, without a hearing, determines an application for permission to appeal-

(a)

against a decision of-

(i)

the Tax Chamber of the First-tier Tribunal;

(ii)

the Health, Education and Social Care Chamber of the First-tier Tribunal;

(iia) the General Regulatory Chamber of the First-tier Tribunal;

…

(iii)

the Mental Health Review Tribunal for Wales; or

(iv)

the Special Educational Needs Tribunal for Wales; or

(b)

under section 4 of the Safeguarding Vulnerable Groups Act 2006.

(4)

Subject to paragraph (4A), in the circumstances set out in paragraph (3) the appellant may apply for the decision to be reconsidered at a hearing if the Upper Tribunal –

(a)

refuses permission to appeal or refuses to admit a late application for permission; or

(b)

gives permission to appeal on limited grounds or subject to conditions.

(4A) Where the Upper Tribunal considers the whole or part of an application to be totally without merit, it shall record that fact in its decision notice and, in those circumstances, the person seeking permission may not request the decision or part of the decision (as the case may be) to be reconsidered at a hearing.

...”

It was common ground that, because the claimant’s proceedings are in the First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber), which is not listed in rule 22(3), he had no right to renew his permission application at an oral hearing.

Part 1 of Schedule 5 to TCEA 2007 deals with the content of Tribunal Procedure Rules. Paragraph 15 concerns the correction of errors and setting-aside of decisions on procedural grounds. It reads:

“Correction of errors and setting-aside of decisions on procedural grounds

15

(1) Rules may make provision for the correction of accidental errors in a decision or record of a decision.

(2)

Rules may make provision for the setting aside of a decision in proceedings before the First-tier Tribunal or Upper Tribunal-

(a)

where a document relating to the proceedings was not sent to, or was not received at an appropriate time by, a party to the proceedings or a party’s representative,

(b)

where a document relating to the proceedings was not sent to the First-tier Tribunal or Upper Tribunal at an appropriate time,

(c)

where a party to the proceedings, or a party’s representative, was not present at a hearing related to the proceedings, or

(d)

were has been any other procedural irregularity in the proceedings.

(3)

Sub-paragraphs (1) and (2) shall not be taken to prejudice, or to be prejudiced by, any power to correct errors or set aside decisions that is exercisable apart from rules made by virtue of those sub-paragraphs.”

Pursuant to Paragraph 15(2) of Part 1 of Schedule 5 to TCEA 2007, the UT Rules make specific provision in rule 43 for the “setting aside” of decisions which dispose of proceedings where there has been some kind of procedural irregularity. It provides:

“Setting aside a decision which disposes of proceedings

43

(1) The Upper Tribunal may set aside a decision which disposes of proceedings, or part of such a decision, and re-make the decision or the relevant part of it, if –

(a)

the Upper Tribunal considers that it is in the interests of justice to do so; and

(b)

one or more of the conditions in paragraph (2) are satisfied.

(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 Upper 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.

…”

“Hearing” is defined in rule 1(3) of the UT Rules as follows:

“hearing” means an oral hearing and includes a hearing conducted in whole or part by video link, telephone or other means of instantaneous two-way electronic communication”

Section 10 of TCEA 2007 provides for the Upper Tribunal to have a power to review its decisions other than decisions that are excluded decisions for the purposes of section 13(1) TCEA 2007, exercisable on the application of a person with a right of appeal against the decision or of its own initiative, and may in light of its review take steps including setting the decision aside and re-deciding it. While section 10 TCEA 2007 appears to be in relatively broad terms, the rules made pursuant to section 10 are very narrow in scope. They provide:

“Upper Tribunal’s consideration of application for permission to appeal

45

(1) on receiving an application for permission to appeal the Upper Tribunal may review the decision in accordance with rule 46 (review of a decision), but may only do so if-

(a)

when making the decision the Upper Tribunal overlooked a legislative provision binding authority which could have had a material effect on the decision; or

(b)

since the Upper’s Tribunal’s decision, the court has made a decision which is binding on the Upper Tribunal which, had it been made before the tribunal’s decision, could have had a material effect on the decision.

…”

“Review of a decision

46

(1) The Upper Tribunal may only undertake a review of a decision pursuant to rule 45(1) (review on an application for permission to appeal).

…”