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Application for leave to appeal by LM against the Advocate General for Scotland (Court of Session) [2024] CSIH 28 (19 September 2024)
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[2024] CSIH 28
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FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2024] CSIH 28
XA28/24
Lord Pentland
OPINION OF THE COURT
delivered by LORD PENTLAND
in an application for leave to appeal against a decision of the Upper Tribunal
under Section 13 of the Tribunals, Courts and Enforcement Act 2007
by
LM
Applicant
against
THE ADVOCATE GENERAL FOR SCOTLAND
Respondent
____________
Applicant: Party
Respondent: Middleton, Office of the Advocate General
19 September 2024
Background
[1]
This is an application for permission to appeal a decision of the Upper Tribunal to
the Court of Session under s13 of the Tribunals, Courts and Enforcement Act 2007. The legal
2
framework is somewhat complicated, but the background and procedural history are
relatively straightforward.
[2]
The applicant is LM. The respondent is the Advocate General for Scotland who
represents for the purposes of proceedings such as these the Secretary of State for Work and
Pensions. The Child Maintenance Service falls under the auspices of the Department for
Work and Pensions. LM has a child, A, whose father is SM. LM has care of A. SM is a
police officer. He also owns and runs businesses. In 2018, SM asked the CMS to fix the
amount of child maintenance he should pay in respect of A. In February 2019, the CMS
determined that he should contribute £79.37 per week. LM sought mandatory
reconsideration by the CMS. Her position was (and remains) that SM manipulated the
accounts of his businesses to depress his apparent income and thus deceive the CMS into
calculating an artificially low figure. The CMS completed its reconsideration in March 2019
and confirmed its original decision.
[3]
LM appealed to the First-tier Tribunal. A hearing was held on 25 May 2021. The
CMS and SM were parties. SM was unable to give a detailed explanation of his companies'
financial affairs under "close questioning" by the tribunal. It nonetheless upheld the
decision. LM appealed to the UT. On 10 June 2022, the UT allowed the appeal. It held that
the FtT had materially erred in law. The FtT's reasoning suggested that it had failed to take
any of the steps available to it to investigate SM's evidence or provide an adequate
explanation for reaching its conclusions. The UT set aside the FtT's decision and ordered
LM's appeal to be reheard by a differently-constituted tribunal.
[4]
At the re-hearing SM did better. He and his accountant provided explanations for
his financial affairs which the tribunal considered "reliable" and "authoritative and helpful".
3
The tribunal accepted their evidence in full. It conducted its own examination of SM's
personal bank statement and those of his businesses. Although these revealed a history of
"lax" financial organisation and "ill-advised accountancy practices", it did not infer
dishonesty on his part. It concluded that there was no evidence that SM had tried to "cook
the books" or divert monies between the accounts to obscure income. On 23 May 2023 the
FtT again refused LM's appeal ("the Second FtT Decision").
[5]
LM sought to appeal the Second FtT Decision. The FtT refused permission to appeal
on 29 September 2023. LM then applied to the UT for permission directly. On 11 December
2023, the UT refused permission ("the UT Permission decision"). It noted that s11(1) of the
Tribunals, Courts and Enforcement Act 2007 restricts appeals to points of law. LM's
proposed grounds of appeal amounted to disagreements with the FtT's findings in fact and
a groundless allegation of bias on the tribunal's part. The UT was not persuaded that it was
arguable that the Second FtT Decision disclosed an error of law.
[6]
LM was disappointed. On 10 January 2024, she emailed the Tribunal clerk in the
following terms:
"I wish to make an application under Rule 43 on the basis of (2)(d) there has been
some other procedural irregularity in the proceedings.
The irregularities are detailed in my email of yesterday, 9th January 2024.
I wish it to be noted that I have pursued this matter for almost 5 years, surely this
demonstrates the proof and belief I have that [SM] IS deceiving the system? I feel that
the tribunal is demonstrating bias towards [SM] by not properly investigating the
evidence and facts I have presented. The tribunal clearly claimed that [SM] was
"honest" - a statement that the tribunal cannot possibly substantiate."
[7]
The reference to "Rule 43" is a reference to the Tribunal Procedure (Upper Tribunal)
Rules 2008, Rule 43, which provides:-
4
"(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."
[8]
In her email of 9 January 2024, LM set out at length her disagreement with the
Second FtT Decision. She drew attention to the timing of SM's engagement of an
accountant: shortly after she applied for reconsideration, which she considered suspicious.
She said that SM had lied about his willingness to take a paternity test. He had called the
CMS "repeatedly" to ask about closing her case why, she asked, would he do this if he had
nothing to hide? She could not understand why the UT had upheld her first appeal but then
referred the case back to the FtT. The first UT's findings "still remain[ed]". She had assisted
SM with his businesses and she knew how much money they had made. SM had not
provided actual evidence of his finances like receipts and invoices, just a spreadsheet which
the FtT had uncritically accepted. SM and his family were "dishonest and liars". LM had
lodged newspaper articles with stories to that effect. By finding that SM was an honest
witness in such circumstances the tribunal demonstrated bias.
5
[9]
The UT refused the application to set aside the UT Permission Decision on
1 February 2024 under Rule 43 ("the Rule 43 Decision"). In a short note of reasons, it
highlighted that the circumstances set out in Rule 43 were exhaustive. The UT had to refuse
the application unless one of the conditions in (2)(a) (d) applied. Those conditions related
to the procedure before the Upper Tribunal, not the FtT. LM's email of 9 January, which she
had adopted as her application, did not explain why it was arguable that any of the
Rule 43(2) conditions applied. It simply reiterated the arguments she had unsuccessfully
advanced before the FtT and in her application for permission to appeal.
[10]
LM was undeterred. On 27 February 2024 she again emailed the Tribunal clerk. She
attached a fresh copy of her email of 9 January and advised that she wished to appeal to this
court against the Rule 43 Decision "as quite simply the case has not been fully investigated
and [SM] is being allowed to deliberately conceal his income". On 21 March 2024, the UT
refused permission to appeal to the Court of Session ("the Rule 43 Permission Decision").
[11]
LM now applies to this court for permission to appeal directly.
The law
[12]
A party dissatisfied with a decision of the UT has three potential avenues available to
her.
[13]
The first is a right of appeal under s13 of the 2007 Act. S13 reads as follows:-
"13.
Right to appeal to the Court of Appeal etc
(1)
For the purposes of subsection (2), the reference to a right of appeal is to a
right of appeal to the relevant appellate court on any point of law arising
from a decision made by the Upper Tribunal other than an excluded decision.
(2)
Any party to a case has a right of appeal, subject to subsection (4)
(3)
That right may be exercised only with permission [...]
6
(4)
Permission (or leave) may be given by-
[...]
(b)
The relevant appellate court
[...]
(7)
An application falls within this subsection if the application is for permission
(or leave) to appeal from any decision of the Upper Tribunal on an appeal
under section 11
(8)
For the purposes of subsection (1), an "excluded decision" is
[...]
(c)
any decision of the Upper Tribunal on an application under section
11(4)(b) (application for permission or leave to appeal)
(d)
a decision of the Upper Tribunal under section 10
(i) to review, or not to review, an earlier decision of the tribunal,
(ii) to take no action, or not to take any particular action, in the light of
a review of an earlier decision of the tribunal, or
(iii) to set aside an earlier decision of the tribunal."
[14]
The key provision here is s13(8)(c), which provides that a decision of the UT to refuse
permission to appeal a decision of the FtT to itself is an excluded decision. As a result, the
UT Permission Decision may not be appealed to this court, which is the relevant appellate
court in the present case.
[15]
The second avenue available to a disappointed UT litigant is to seek a review under
s10 of the 2007 Act. This does not arise in the present appeal; LM did not seek a review
under s10, and in any event such a review may only be undertaken for a decision which is
not an excluded decision - which a refusal to grant permission to appeal a decision of the FtT
7
is. Even if the UT had the power to review its decision of 11 December 2023, s13(8)(d)(i)
provides that a decision by the UT to review, or not to review, an earlier decision is an
excluded decision and so could not be appealed to this court.
[16]
Finally, there is Rule 43, quoted above. A party seeking to have the UT set aside a
decision under Rule 43 must, therefore, demonstrate that one of the conditions in Rule 43(2)
is met. Even if one of these conditions is met, that does not entail automatic success the UT
must be persuaded that it is in the interests of justice for it to set its decision aside. Four
further points are significant.
i)
First, Rule 43 is concerned with the procedure by which the UT deals with a
case. It does not open the door to a reconsideration of the UT's decision on
the merits. As Upper Tribunal Judge Jacobs put it in SK v Secretary of State for
with how the Upper Tribunal handled the claimant's application for
permission to appeal. It does not provide a means of challenge to the decision
itself or the reasons on which it is based."
ii)
Secondly, an application relating to a decision by the UT under Rule 43 does
not give rise to an excluded decision in terms of s13(1) of the 2007 Act. A
party may therefore, with permission, appeal such a decision to the Court of
Session, even where the Rule 43 application relates to a decision which is
itself an excluded decision (Plescan v Secretary of State for Work and Pensions
application for permission to appeal against a decision of the UT under Rule
43 refusing to set aside a previous decision of the UT refusing permission to
8
appeal to the UT a decision of the FtT. As the authors of an article
Journal of Social Security Law (JSSL 2023 30(3), D73 D74) put it, the
permission hearing for such an appeal may be described as "a hearing about
having a hearing about a decision, about a decision, about a judgment about a
decision."
iii)
Thirdly, the relevant test is not the demanding requirement that the appeal
raise either an important point of principle or other compelling reason (see
RCS 41.57). Instead it is whether the proposed appeal is arguable.
iv)
Fourthly, as Lewis LJ put it in Plescan at [29]:
"Any such appeal would, however, have to be based on arguable grounds
that the Upper Tribunal erred in considering that it was not in the interests of
justice or in finding that there was no procedural error or irregularity in the
proceedings in the Upper Tribunal as specified in rule 43. The appeal would
not be an appeal against the refusal of permission. It would be an appeal
against the refusal to set aside."
Submissions
[17]
SM's application is not entirely clear as to what the nature of her proposed appeal is
intended to be. This is not intended as a criticism; she is not a lawyer and the applicable law
is complicated. The difficulty is that although her application states that she seeks to appeal
the UT's decision of 21 March 2024 (the Rule 43 Permission Decision), her submissions in
support are entirely directed at the merits of the Second FtT Decision. Her proposed
grounds of appeal are: "1. Inadequacy of evidence" and "2. Lack of investigation" which are
criticisms of the Second FtT Decision. SM lodged detailed written submissions expanding
upon the criticisms of the Second FtT Decision contained in her email of 9 January and
1
Charlotte O'Brien and Tom Royston
9
supporting these submissions by reference to various pieces of evidence. These submissions
also did not engage with the admittedly complex 2007 Act scheme for appeals outlined
above.
[18]
In view of this, and anxious that SM not be deprived of an opportunity to prosecute a
competent and arguable appeal because she is not a lawyer, I decided to invite
Mr Middleton for the respondent to address me first, specifically requesting that he provide
an overview of the relevant law and the issues in this application in a way which would be
accessible for SM. Proceeding in this way also afforded SM the opportunity to focus her
own oral submissions on the legal test for permission to appeal outlined by Mr Middleton
and to have the last word.
[19]
For the respondent, Mr Middleton first outlined in detail the procedural history and
statutory scheme set out above, as well as the decision of the Court of Appeal in Plescan.
The respondent's motion was to refuse permission. No interpretation (however generous)
of SM's application was competent and arguable. If the proposed appeal was against the
refusal of permission to appeal the Second FtT Decision it was incompetent because that
refusal is an excluded decision per s13(8)(c).
[20]
If the appeal was against the Rule 43 Decision it was competent, but the proposed
grounds of appeal were irrelevant and unarguable. Lewis LJ's dicta in Plescan, supra,
required the appellant to put forward arguable grounds that the UT erroneously found that
there was no procedural error or irregularity in its decision or that the interests of justice did
not favour its being set aside. In the present case the appellant required to identify a
procedural irregularity in the Rule 43 Decision amounting to an error of law. She had failed
to do so.
10
[21]
Finally, if the proposed appeal was against the Rule 43 Permission Decision (as the
applicant's Form 40.2 suggested it was) it was not competent. Although a decision of the UT
refusing permission to appeal a Rule 43 decision to the Court of Session was not an excluded
decision per s13(8), Sarfraz v Disclosure and Barring Service [2015] 1 WLR 4441 was authority
for the principle that a decision on whether to grant permission to appeal is final absent
express statutory language to the contrary. That principle is well-established and directed at
avoiding "the absurdity of allowing an appeal against a decision under a provision designed
to limit the right of appeal" (Kemper Reinsurance Co v Minister of Finance & Ors [2000] 1 AC 1,
Lord Hoffman at 13, quoted in Sarfraz) and was first expressed by the House of Lords in
Lane v Esdaile [1891] AC 210. Quite properly, Mr Middleton acknowledged that there was
possibly an alternative view on this point relying simply on the fact that the Rule 43
Permission Decision was not an excluded decision per s13(8) and that s13(1) referred to "any
point of law arising from a decision" without further specification.
[22]
Mr Middleton concluded by summarising LM's "complaint" as essentially one about
the adequacy of the Second FtT Decision. Although some of her complaints for example of
bias could amount to public law challenges, matters such as the assessment of SM's
credibility and reliability were plainly factual matters and not errors of law. Parliament had
laid down a scheme to limit appeals from the UT, and a critical feature of that scheme was
that some errors must lie where they fall.
[23]
In addition to detailed written submissions, and having heard Mr Middleton, SM in
reply made concise oral submissions, which she presented with moderation and conviction.
She agreed that her challenge was to the adequacy of the Second FtT Decision. The FtT had
formed an incorrect view of SM's financial position and of his credibility and reliability.
11
This erroneous view had led it to uphold the CMS's assessment of his contribution to A's
care. Despite her first, successful appeal criticising the FtT, the figure was far too low. LM
had suffered prejudice, but more importantly A was not getting the support she deserved.
SM was flouting his obligation to support A's upbringing. The procedural irregularity
consisted in the fact that the Second FtT Decision was reached on insufficient evidence.
Decision
[24]
LM does not accept the Second FtT Decision. She has formed the strongly-held view
that it was wrong and that SM pulled the wool over the tribunal's eyes. Her criticisms of the
FtT and SM are detailed. For the purpose of deciding this application for permission to
appeal, I have taken them pro veritate in other words, I have assumed them to be true. That
should not be read as suggesting SM has in fact behaved in the way LM describes, which is
not a question I have to decide.
[25]
The starting point is the statutory scheme for permission to appeal which Parliament
has set out in the 2007 Act. That statutory scheme provides that an appeal may be taken
from the Upper Tribunal to this court on a point of law against any decision which is not an
excluded decision per s13(8). S13(8)(c) provides that an UT decision on permission to appeal
from the FtT is an excluded decision. Therefore, LM cannot achieve by this route her
objective in bringing this application: to have the Second FtT Decision set aside. Her right of
appeal from that decision was a right to appeal, with permission, to the UT (s11(1) (4)).
She sought permission and the UT decided to refuse her. Even assuming her detailed
criticisms of the Second FtT Decision's factual findings are correct, there is nothing this court
can competently do about that in this application and proposed appeal.
12
[26]
An appeal against the Rule 43 Decision is competent per Plescan. However, I
consider Mr Middleton's submission that the proposed grounds of appeal are irrelevant and
unarguable to be well-founded. LM's Form 40.2 sets out 13 statements in support of her
application for permission to appeal. In summary these are: that the evidence to justify SM's
earnings and expenditure was inadequate; that the Second FtT Decision disregarded the
UT's reasoning in setting aside the first FtT decision; that the tribunal should have directed
SM to provide invoices for his businesses dating back to 2015; that SM amalgamated a
thriving business into a failing one a month after LM raised her case with the CMS; that the
FtT found that one of SM's businesses was failing; that SM claimed only to have made £1559
from his businesses despite his significant time commitment; that SM hoodwinked the
tribunal into concluding he had not "cooked the books"; that SM described the same monies
as both gifts and loans; that SM's previous accountant was not called to give evidence; that
the tribunal did not take into account Scottish Government grants SM had received; that
there was no reasonable explanation for the amalgamation of his businesses other than an
attempt to divert income; that SM failed to provide evidence he had no business interests
other than those examined by the FtT; and that the tribunal's assessment of SM as a
"generally honest witness" was a subjective and unsubstantiated statement that had no
place in a tribunal. These were distilled into the twin grounds of "inadequacy of evidence"
and "lack of investigation".
[27]
None of these grounds or statements says anything about the Rule 43 Decision. They
are all directed at the Second FtT Decision. They do not, therefore, amount to arguable
grounds that the UT erred in considering that there was no procedural error or irregularity
in the proceedings in the UT. Although LM submitted that the lack of evidence supporting
13
the Second FtT Decision was a procedural irregularity in itself, I do not consider even on a
broad reading that this amounts to an arguable ground. Rule 43 is a procedural rule
designed to provide a safeguard for proceedings in the UT; it goes without saying that it is
not engaged where criticisms are made of a decision of the FtT.
[28]
Although the point could not be fully argued in view of the fact that LM was not
legally represented, I see force in Mr Middleton's submission that an appeal against the
Rule 43 Permission Decision is not competent. However, it is not necessary to decide this
question because having decided that there are no arguable grounds for appealing the Rule
43 Decision, it is axiomatic that are also no arguable grounds for appealing the Rule 43
Permission Decision.
[29]
At the end of the day the insurmountable difficulty for the applicant is that what she
really wishes is to appeal to the Court of Session against the second FtT decision on the basis
that the conclusions reached were factually wrong. She has not identified any genuine point
of law. An appeal to the Court of Session on such factual grounds is not open to her. The
present application must, therefore, be refused.
