Case No. UKUT-00410-(IAC)

(1) Subject to the provisions of the 2007 Act and any other enactment, the Upper Tribunal may regulate its own procedure.(2) The Upper 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.(3) In particular, and without restricting the general powers in paragraphs (1) and (2), the Upper Tribunal may -(a) extend or shorten the time for complying with any rule, practice direction or direction;(b) consolidate or hear together two or more sets of proceedings or parts of proceedings raising common issues, or treat a case as a lead case;(c) permit or require a party to amend a document;(d) permit or require a party or another person to provide documents, information, evidence or submissions to the Upper Tribunal or a party;(e) deal with an issue in the proceedings as a preliminary issue;(f) hold a hearing to consider any matter, including a case management issue;(g) decide the form of any hearing;(h) adjourn or postpone a hearing;(i) require a party to produce a bundle for a hearing;(j) stay (or, in Scotland, sist) proceedings;(k) transfer proceedings to another court or tribunal if that other court or tribunal has jurisdiction in relation to the proceedings and—(i) because of a change of circumstances since the proceedings were started, the Upper Tribunal no longer has jurisdiction in relation to the proceedings; or(ii) the Upper Tribunal considers that the other court or tribunal is a more appropriate forum for the determination of the case;(l) suspend the effect of its own decision pending an appeal or review of that decision;(m) in an appeal, or an application for permission to appeal, against the decision of another tribunal, suspend the effect of that decision pending the determination of the application for permission to appeal, and any appeal;(n) require any person, body or other tribunal whose decision is the subject of proceedings before the Upper Tribunal to provide reasons for the decision, or other information or documents in relation to the decision or any proceedings before that person, body or tribunal.(4) The Upper Tribunal may direct that a fast-track case cease to be treated as a fast-track case if -(a) all the parties consent; [or] (b) (5) In a financial services case, the Upper Tribunal may direct that the effect of the decision in respect of which the reference has been made is to be suspended pending the determination of the reference, if it is satisfied that to do so would not prejudice -(a) (b) the smooth operation or integrity of any market intended to be protected by that notice [; or] (c) the stability of the financial system of the United Kingdom.(6) Paragraph (5) does not apply in the case of a reference in respect of a decision of the Pensions Regulator.(7) In a wholesale energy case, the Upper Tribunal may direct that the effect of the decision in respect of which the reference has been made is to be suspended pending the determination of the reference.”We would also highlight, briefly, Rule 21, which contains the power exercised in this case to grant permission to appeal to the UT in circumstances where the FtT has refused to do so and the outworkings thereof, found in Rules 22 and 22A.11. Completing the statutory jigsaw we draw attention to the so-called “second appeal” test viz the test to be applied in the determination of applications for permission to appeal from the UT to the Court of Appeal. Section 13(6) of the 2007 Act provides:“The Lord Chancellor may, as respects an application under subsection (4) that falls within subsection (7) and for which the relevant appellate court is the Court of Appeal in England and Wales or the Court of Appeal in Northern Ireland, by order make provision for permission (or leave) not to be granted on the application unless the Upper Tribunal or (as the case may be) the relevant appellate court considers -(a) that the proposed appeal would raise some important point of principle or practice, or(b) that there is some other compelling reason for the relevant appellate court to hear the appeal.(6A) Rules of court may make provision for permission not to be granted on an application under subsection (4) to the Court of Session that falls within subsection (7) unless the court considers -(a) that the proposed appeal would raise some important point of principle [ or practice] , or (b) that there is some other compelling reason for the court to hear the appeal”.The exercise of the power conferred on the Lord Chancellor by this provision is contained in the Constitutional Reform Act 2005.12. We would also mention the combined Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal Practice Direction, dated 10 February 2010, issued by the Senior President of Tribunals. Part 3 of this instrument reflects the staged nature of the UT’s decision making process contemplated by section 12 of the 2007 Act. Paragraph 3.1 provides:“Where permission to appeal to the Upper Tribunal has been granted, then, unless and to the extent that they are directed otherwise, for the purposes of preparing for a hearing in the Upper Tribunal the parties should assume that:- (a) the Upper Tribunal will decide whether the making of the decision of the First-tier Tribunal involved the making of an error on a point of law, such that the decision should be set aside under section 12(2)(a) of the 2007 Act; (b) except as specified in Practice Statement 7.2 (disposal of appeals by Upper Tribunal), the Upper Tribunal will proceed to re-make the decision under section 12(2)(b)(ii), if satisfied that the original decision should be set aside; and (c) in that event, the Upper Tribunal will consider whether to re-make the decision by reference to the First-tier Tribunal’s findings of fact and any new documentary evidence submitted under UT rule 15(2A) which it is reasonably practicable to adduce for consideration at that hearing.”The sequencing which the final decision making may involve is reflected in the next three succeeding provisions:“3.2 The parties should be aware that, in the circumstances described in paragraph 3.1(c), the Upper Tribunal will generally expect to proceed, without any further hearing, to re-make the decision, where this can be undertaken without having to hear oral evidence. In certain circumstances, the Upper Tribunal may give directions for the giving of oral evidence at the relevant hearing, where it appears appropriate to do so. Such directions may be given before or at that hearing. 3.3 In a case where no oral evidence is likely to be required in order for the Upper Tribunal to re-make the decision, the Upper Tribunal will therefore expect any documentary evidence relevant to the re-making of the decision to be adduced in accordance with Practice Direction 4 so that it may be considered at the relevant hearing; and, accordingly, the party seeking to rely on such documentary evidence will be expected to show good reason why it is not reasonably practicable to adduce the same in order for it to be considered at that hearing. 3.4 If the Upper Tribunal nevertheless decides that it cannot proceed as described in paragraph 3.1(c) because findings of fact are needed which it is not in a position to make, the Upper Tribunal will make arrangements for the adjournment of the hearing, so that the proceedings may be completed before the same constitution of the Tribunal; or, if that is not reasonably practicable, for their transfer to a different constitution, in either case so as to enable evidence to be adduced for that purpose.”The exercise of fitting the decision of the UT dated 12 January 2016 into the framework of both section 12 and the Practice Direction is easily performed.