Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Appeal No CCS/2675/2011. 

ADMINISTRATIVE APPEALS CHAMBER

 

Before: Upper Tribunal Judge PA Gray

 

Decision: This application is dismissed.

 

 

1.     This matter comes to me following a decision by Judge Nicholas Warren, in which he severed two issues that were then before him, ruling upon one and remitting the other to another judge, because it concerned a legal submission based upon the legality of the parts of the Tribunal Procedural Rules.

 

2.     Judge Warren recused himself from deciding this point because he had been a member of the Tribunal Rules Committee which had drafted the rules pursuant to the Tribunal Courts and Enforcement Act 2007.

 

3.     He gave directions, stating that they were subject to review and amendment by the judge who dealt with the issue finally. I do not need to amend the directions.

 

4.     Under those directions I now have the benefit of a submission by Mr Burrows on behalf of the applicant father. I do not need to trouble the other parties to respond.

 

5.     I refuse the application for permission to appeal. 

 

 

REASONS

The background

 

6.      It is not necessary for the purposes of this decision for me to go into detail concerning the complex history of these child support proceedings. The decision of Judge Warren upon the issue that he did decide, which was an application for permission to appeal made in 2011, deals sufficiently with the relevant background.

 

7.     It is enough for me to state here that the issue the father wishes to pursue to the Upper Tribunal arises out of an appeal against a decision made by the Commissioner for Child Maintenance on 24/5/2006, consolidated with the refusal of a variation application made by the mother, the Parent with Care, on 15/01/2008 on the ground of lifestyle. The appeal was heard by the First-Tier Tribunal on 31/3/2009, following directions for the production of documents by the Father, and the conduct of the hearing generally.

 

8.     Following the decision being issued to the parties it was noticed that there was an arithmetical error on the face of the document, and the judge corrected it.  This will have been a correction under rule 36, as an accidental slip; it cannot be a correction under the review power (rule 40) because that power only arises where an application for permission to appeal has been made, and at that point no party had approached either the First-Tier or the Upper Tribunal for permission.

 

 

 

The application before me

 

9.     Mr Burrows wishes to pursue an application for permission to appeal which I accept was made within one month of the issue of the corrected decision notice, directly to the Upper Tribunal. The application was received at the Upper Tribunal on 21 July 2009. I accept that it was filed here within one month of the sending of the corrected decision notice.  In fact a rule 36 correction does not automatically extend the time for applying for a statement of reasons for appealing, nonetheless the father was sent documentation by HMC TS to say that he had a further month in which to act, and it is just to extend time to that effect; I do that under rule 5(3) of the Upper Tribunal Procedure Rules. 

 

10. The time issue being now dealt with, whether the form filed at the Upper Tribunal was a valid application for permission to appeal depends upon the outcome of Mr Burrows vires argument, as I do not find it appropriate to waive the procedural irregularity of the application for permission to appeal having been made directly to the Upper Tribunal under rule 7(2)(a) of the Tribunal Procedure (Upper Tribunal) rules 2008. 

 

 

Appeals to the Upper Tribunal

 

11. The right of appeal is conferred by the primary legislation, the Tribunal Courts and Enforcement Act 2007( TCEA), where section 11 provides

11 Right to appeal to Upper Tribunal 

(1) For the purposes of subsection (2), the reference to a right of appeal is to a right to appeal to the Upper Tribunal  on any point of law arising from a decision made by the First-tier Tribunal  other than an excluded decision.

(2) Any party to a case has a right of appeal, subject to subsection (8).

(3) That right may be exercised only with permission (or, in Northern Ireland, leave).

(4) Permission (or leave) may be given by–

(a) the First-tier Tribunal , or

(b) the Upper Tribunal ,

on an application by the party.

(5) For the purposes of subsection (1), an "excluded decision" is–

(a) ….etc

(d) a decision of the First-tier Tribunal  under section 9–

(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 ,

(iii) to set aside an earlier decision of the tribunal , or

(iv) to refer, or not to refer, a matter to the Upper Tribunal ,

(e) a decision of the First-tier Tribunal  that is set aside under section 9 (including a decision set aside after proceedings on an appeal under this section have been begun), or …

 

The appeals procedure under the Procedure Rules

 

12. The procedure of the First-Tier Tribunal in relation to appeals is set out in the First-Tier Tribunal Procedure Rules at rule 38,  which reads as follows

38.–(1) This   rule   does not apply to asylum support cases or criminal injuries compensation cases.

(2) A person seeking permission to appeal must make a written application to the   Tribunal   for permission to appeal.

(3) An application under paragraph (2) must be sent or delivered to the   Tribunal  so that it is received no later than 1 month after the latest of the dates that the   Tribunal   sends to the person making the application–

(a) written reasons for the decision;

(b) notification of amended reasons for, or correction of, the decision following a review; or

(c) notification that an application for the decision to be set aside has been unsuccessful.

(4) The date in paragraph (3)(c) applies only if the application for the decision to be set aside was made within the time stipulated in   rule   37 (setting aside a decision which disposes of proceedings) or any extension of that time granted by the   Tribunal  .

(5) If the person seeking permission to appeal sends or delivers the application to the   Tribunal   later than the time required by paragraph (3) or by any extension of time under   rule   5(3)(a) (power to extend time)–

(a) the application must include a request for an extension of time and the reason why the application was not provided in time; and

(b) unless the   Tribunal   extends time for the application under   rule   5(3)(a) (power to extend time) the   Tribunal   must not admit the application.

(6) An application under paragraph (2) must–

(a) identify the decision of the   Tribunal   to which it relates;

(b) identify the alleged error or errors of law in the decision; and

(c) state the result the party making the application is seeking.

(7) If a person makes an application under paragraph (2) when the   Tribunal   has not given a written statement of reasons for its decision–

(a) if no application for a written statement of reasons has been made to the  Tribunal  , the application for permission must be treated as such an application;

(b) unless the   Tribunal   decides to give permission and directs that this sub-paragraph does not apply, the application is not to be treated as an application for permission to appeal; and

(c) if an application for a written statement of reasons has been, or is, refused because of a delay in making the application, the   Tribunal   must only admit the application for permission if the   Tribunal   considers that it is in the interests of justice to do so.

 

13. The Upper Tribunal Procedural Rules also provide for an application for permission to appeal to be made to the Upper Tribunal. This appears under Rule 21. The relevant parts are

 

Appeals and references to the Upper Tribunal

Application to the Upper Tribunal for permission to appeal

21.–(1) This rule applies to an application for permission to appeal to the Upper Tribunal against any decision.

(2) A person may apply to the Upper Tribunal for permission to appeal to the Upper Tribunal against a decision of another tribunal only if–

(a) they have made an application for permission to appeal to the tribunal  which made the decision challenged; and

(b) that application has been refused or has not been admitted.

(3) An application for permission to appeal must be made in writing and received by the Upper Tribunal no later than–

(a) in the case of an application under section 4 of the Safeguarding Vulnerable Groups Act 2006, 3 months after the date on which written notice of the decision being challenged was sent to the appellant; or

(b) otherwise, a month after the date on which the tribunal that made the decision under challenge sent notice of its refusal of permission to appeal, or refusal to admit the application for permission to appeal, to the appellant.

(4) The application must state–

(a) the name and address of the appellant;

(b) the name and address of the representative (if any) of the appellant;

(c) an address where documents for the appellant may be sent or delivered;

(d) details (including the full reference) of the decision challenged;

(e) the grounds on which the appellant relies; and

(f) whether the appellant wants the application to be dealt with at a hearing.

(5) The appellant must provide with the application a copy of–

(a) any written record of the decision being challenged;

(b) any separate written statement of reasons for that decision; and

(c) if the application is for permission to appeal against a decision of another tribunal , the notice of refusal of permission to appeal, or notice of refusal to admit the application for permission to appeal, from that other tribunal .

 

Mr Burrows argument

14. Mr Burrows argues that section 11(4) (a) and (b) of the TCEA permit the application for permission to appeal to be made to either the First-Tier Tribunal that made the decision, or to the Upper Tribunal without the need for sequential applications.

 

15. Any purported limitation of a direct right of appeal to the Upper Tribunal by Tribunal Procedural Rules is, he argues, not binding upon me because such a rule will be ultra vires. He bases this argument upon section 22 (4) of the TCEA , the enabling power to make Tribunal Procedure Rules which reads

 

Section 22 

“(1) There are to be rules, to be called “Tribunal Procedure Rules”, governing–

(a) the practice and procedure to be followed in the First-tier Tribunal, and

(b) the practice and procedure to be followed in the Upper Tribunal.

 

(2) Tribunal Procedure Rules are to be made by the Tribunal Procedure Committee.

 

 

(4) Power to make Tribunal Procedure Rules is to be exercised with a view to securing–

(a) that, in proceedings before the First-tier Tribunal and Upper Tribunal, justice is done,

(b) that the tribunal system is accessible and fair,

(c) that proceedings before the First-tier Tribunal or Upper Tribunal are handled quickly and efficiently,

(d) that the rules are both simple and simply expressed, and

(e) that the rules where appropriate confer on members of the First-tier Tribunal, or Upper Tribunal, responsibility for ensuring that proceedings before the tribunal are handled quickly and efficiently.

 

(5) In subsection (4)(b) “the tribunal system” means the system for   deciding matters within the jurisdiction of the First-tier Tribunal or the   Upper Tribunal.”

 

16. I would add at this stage that further provision is made by Schedule 5 of TCEA 2007 without prejudice to the generality of section 22 for rules to be made in respect of the specific matters. Relevant in relation to the submissions of Mr Burrows is

Concurrent functions

2 Rules may make provision as to who is to decide, or as to how to decide, which of the First-tier Tribunal  and Upper  Tribunal  is to exercise, in relation to any particular matter, a function that is exercisable by the two tribunals on the basis that the question as to which of them is to exercise the function is to be determined by, or under, Rules

This is a wide enabling provision which has not been mentioned in Mr Burrow’s argument. It would of itself enable apportionment of decision making in relation to applications for permission to appeal between the First-Tier Tribunal and the Upper Tribunal. 

17. Mr Burrows argument that the relevant part of the rules is ultra vires relies on section 22 (4) parts (a)( b) and (d).  Under (a), whether justice was done, seemingly in conjunction with the obligation under (b) to see that the tribunal system is accessible and fair, Mr Burrows posits the father’s difficulty, as a then unrepresented appellant in the First Tier Tribunal, in understanding the terms of the TCEA and the Procedural Rules, and the problems that he says such a person of normal intelligence (as opposed to somebody used to dealing with statutory construction) would have. 

 

18. Without conceding that it is necessary in order to interpret the Tribunal Procedural Rules, for the convenience of the parties Decision Notices are sent by HMC TS with a notice, akin to an aide memoir, that sets out the steps which must be taken in the event of any further appeal. Leaving aside the merits of the argument concerning a lack of simplicity in relation to the ultra vires point, I cannot find that this father was disadvantaged by any technical legal terminology because the letter is clear. It is surprising that in the light of that straightforward piece of information the father or those then advising him should choose to adopt a course of action other than the simple one there outlined, that of requesting first a statement of reasons, and then, if still unsatisfied, asking the First-Tier Tribunal for permission to appeal further. Every year numerous unrepresented appellants do this effectively.   I deal further with the more technical aspect of the subsection (d) argument below.

 

 

The ultra vires issue

 

19. Under section 22(4) (c), which is not prayed in aid by Mr Burrows, I find critical powers that enable the system put in place by the rules, mandating that the First –Tier Tribunal is approached initially. 

 

(c) that proceedings before the First-tier Tribunal or Upper Tribunal are handled quickly and efficiently

 

20. Dealing with the business of the tribunal quickly and efficiently includes making optimal use of expensive judicial resources. 

 

21. The TCEA section 9 contains the power for the First Tier Tribunal to review its own decisions.  That power is an important part of the quick and efficient handling of tribunal cases; it enables a case where there is a clear error of law to be filtered out of the appeals process and dealt with at first instance justly.  It also reflects a more general aim of tribunal procedure to allocate cases to judges of the requisite level.  To provide for a right of appeal without an initial application to the Chamber in which the decision was made is inconsistent with that, in that such a system is prone to tie up the time of Upper Tribunal Judges on matters which may be finally dealt with at a lower judicial level. 

 

22. Case law makes it clear that respect is to be shown for the statutory appeals framework. That in relation to Judicial Review  is pertinent by analogy, for example  R (Sivasubramaniam)-v-Wandsworth County Court [2003] 1 WLR 475.  In that case remarks were made [47-48] as to the importance of the use of the  statutory scheme rather than the mechanism of Judicial Review to prevent court resources being wasted by the pursuit of appeals with no reasonable prospect of success, and to ensure that the level of judge dealing with the application is appropriate to the dispute. This dicta supports the view that a two-tier approach is there for legitimate reasons of efficiency. 

 

23. I do not accept the submission that rule 38 of the First-Tier Procedure Rules is neither simple nor simply expressed, as called for under section 22(4)(d).  I make that remark in the knowledge that the law should, and these days does, strive for clarity and plain English. 

 

24. The rule is in a number of parts, but each is short and contains a straightforward point.  Only some of these are likely to be relevant in each case.

 

25. The essential point is that the application may be made to the Upper Tribunal for permission to appeal only if the party had made an application for permission to the tribunal which made the decision. The time limit for making the application is abundantly clear.  The matters which need to be included in any application are also straightforwardly set out; in my view is the rule can be described as simply expressed.

 

26. The fact that the Civil Procedure Rules make provision for an applicant to have an option whether to apply for permission to appeal in front of the first instance judge or to take the matter to a higher court immediately is not in my judgement relevant; the provisions of the CPR should not be imported into other areas (R(Howes)-v- Child Support Commissioners [2008] 1FLR 1091[39] ) .

 

27. More recently in CB-v- Suffolk County Council 2010 UKUT 413 (AAC) [22] a Tribunal of Upper Tribunal Judges including the then Chamber President of the AAC said

 

"….we consider that in passing the 2007 Act, Parliament was intending to confer upon the Tribunal Procedure Committee the power to make the necessary provisions to regulate the issuing of witness summonses by the First-tier Tribunal and the conduct of references to the Upper Tribunal.  It would be in our view both surprising and undesirable – not least in view of the aims stated in section 22(4) of the 2007 Act - if it was necessary to apply a raft of measures from other sources, so that one could not take at face value what was stated in the Tribunal Procedure Rules. '

 

28. Additionally I reject Mr Burrow’s general proposition in paragraph 30 of the argument that the rules for tribunals were intended to be the same as for the civil courts.  The genesis of the recent Tribunal reform was the Leggatt Report, ‘Tribunals for Users’ which aimed to reflect the needs of tribunals and their users. It recognised that Tribunals and courts differ widely, and that tribunals are not themselves homogenous; it can be seen from the rules which I have been considering here that there are even differences in the appeals procedure between one First-Tier Tribunal and another. There is no room for a one size fits all procedure rules policy, and Mr Burrow’s puts forward no cogent argument to say that there is one.  The rules that have been made, on the contrary, illustrate the real importance of retaining differences between courts and tribunals, as well as capitalising on the similarities. 

 

29.  There are material differences between the civil courts, their organisation and judicial structure which may make their rules appropriate for them, and not necessarily for tribunals, or for specific tribunals. The Social Entitlement Chamber of the First-Tier Tribunal deals with many hundreds of thousands of cases each year; the Administrative Appeals Chamber of the Upper Tribunal could be swamped if applicants for permission to appeal simply by passed what is intended to be an initial filter. 

 

30. As regards paragraph 16 of Mr Burrow’s argument which concerns the lack of automatic provision of reasons by the First-Tier Tribunal and appears to be an argument that s 22 (a) and (b) have not been complied with in the procedural rules, once again I disagree;  I find that the rules made concerning access to full reasons are within the enabling powers in section 22 and Schedule 5.  They do not restrict access to the reasons; they will be provided if requested within the one month period.  There is discretion to extend time, which will be exercised judicially, and clearly is open to challenge if it is exercised arbitrarily.  In the father’s case the judge did not extend time.  He commented that it was not in the interests of fairness to direct that a late statement be prepared.  He said that was in the light of the facts of the case and the overriding objective. 

 

31. The rule as to time- limiting the provision of full reasons once again relates to efficiency and expedition.  The number of cases which pass through the Social Security and Child Support jurisdiction of the Social Entitlement Chamber exceeds that of the civil and family courts.  Many cases last for less than one hour, resulting in a judge dealing with a considerable number of cases in a day.  Were a full statement of facts and reasons to be provided in each case the Chamber may require significant additional judicial resources.  The rules provide for a proper but proportionate method of access to justice in all the circumstances.

 

32. An enabling power must be interpreted in the light of its purpose.  FP (Iran)-v-Secretary of State for The Home Department [2007]EWCA Civ 13) . Procedure rules are essential for the conduct of judicial business ( Collins MR in In the Matter of an Arbitration between Coles and Ravenshaw [1907] 1 KB 1 at 4.) It is generally accepted that the power to make procedural rules is a wide one. 

 

33. In conclusion I reject the argument that the content of the Tribunal Procedural Rules as identified by Mr Burrows goes further than that permitted by the enabling powers so as to render them ultra vires. 

 

34. Under the Tribunal Procedure Rules it was a requirement that the father approached the First-Tier Tribunal for permission to appeal initially; only where that permission was refused, or where his application for permission was at that stage not admitted was he entitled to apply to the Upper Tribunal for permission to appeal.

 

35. Accordingly the application received at the Upper Tribunal on 21/7/2009 was not a valid application for permission to appeal; it is outside my jurisdiction and I cannot consider it.

 

 

 

(Signed) PA Gray

Judge of the Upper Tribunal

 

(Dated) 29 April 2013