Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  JR/2012/2012

ADMINISTRATIVE APPEALS CHAMBER

Before Upper Tribunal Judge Rowland

Decision:

(1)  This application for permission to apply for judicial review is treated as an application for permission to appeal against the decision of the First-tier tribunal dated 15 September 2011.

(2)  The requirement under rule 21(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) that an applicant first apply to the First-tier Tribunal for permission to appeal is waived.

(3)  Permission to appeal is granted.

(4)  The appeal is allowed on the sole ground that the First-tier Tribunal has failed to provide a statement of reasons for its decision despite several requests.

(5)  The decision of the First-tier Tribunal is set aside and the case is remitted to a differently-constituted panel for redetermination.

REASONS FOR DECISION

1. The Applicant in the present proceedings, as the mother and person with care of the relevant child, appealed to the First-tier Tribunal against a decision of the Child Maintenance and Enforcement Commission not to make a variation in relation to a claim for child support maintenance against the child’s father.  On 15 September 2011, the First-tier Tribunal dismissed the appeal.  On 9 October 2011, the Applicant sought a statement of reasons for the First-tier Tribunal’s decision.  The decision notice had in fact contained brief reasons but it did not purport to contain a full statement of reasons and there was no detailed discussion of the evidence or the competing submissions.  No full statement of reasons was forthcoming despite the Applicant making two further requests, indicating that she needed a statement of reasons to be able to appeal, and threatening a complaint.

2. On 29 May 2012, the Upper Tribunal received the Applicant’s application for permission to apply for judicial review.  This initially elicited a letter from a Registrar, pointing out that judicial review was not the appropriate remedy and that the Applicant needed to appeal and first to seek permission to appeal from the First-tier Tribunal.  The Registrar said that, if the Applicant did not withdraw the application, it would have to be transferred to the High Court.  When the Applicant said that she had been trying to appeal but had been prevented from doing so by the First-tier Tribunal’s lack of response to her request for a statement of reasons, the file was referred to me.

3. Although in practice it is generally necessary for a would-be appellant to obtain a statement of reasons for the First-tier Tribunal’s decision in order successfully to appeal against the decision and although a would-be appellant is therefore expected to obtain such a statement before applying for permission to appeal, it is not actually a statutory requirement that he or she should do so and it is not always a practical necessity.  This is acknowledged in rule 38(7) of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (SI 2008/2685 – hereinafter “the First-tier Tribunal Rules”), which makes provision for permission to appeal to be granted when no statement of reasons has been issued (in deliberate contrast to rule 35(4) of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009 (SI 2009/273) which requires a statement of reasons to be obtained before an application for permission to appeal is made).  However, the advice to obtain a statement of reasons is often regarded as an instruction and, I believe, the First-tier Tribunal’s system has to be overridden before an application for permission to appeal can be processed in the absence of a statement of reasons.  It is, therefore, not surprising that the Applicant applied for judicial review, but the Registrar was right that the Applicant was not precluded from appealing.

4. The Registrar was also right that the application for permission to apply for judicial review could not be determined as such by the Upper Tribunal.  The Upper Tribunal has only a limited power to determine applications for permission to apply for judicial review.  In England and Wales, it has the function of determining such an application only either under section 18(2) of the Tribunals, Courts and Enforcement Act 2007 (hereinafter “the 2007 Act”) if the case falls within the scope of a practice direction made by the Lord Chief Justice for the purposes of section 18(6) or under section 19(3)(b) if the case has been transferred to the Upper Tribunal by the High Court.  This was neither a case transferred to the Upper Tribunal by the High Court nor a case within the scope of a relevant practice direction.

5. In particular, this case does not fall within the second limb of Practice Direction (Upper Tribunal: Judicial Review Jurisdiction) [2009] 1 W.L.R. 327 which specifies only a challenge to a “decision of the First-tier Tribunal made under Tribunal Procedure Rules or section 9 of the 2007 Act where there is no right of appeal to the Upper Tribunal …”.  That does not cover a challenge to a substantive decision of the First-tier Tribunal (as opposed to a procedural or review decision) and, insofar as a failure to provide reasons can be said to be a decision at all (see Currie, Petitioner [2009] CSOH 145; [2011] AACR 8), it is a procedural decision – an implied refusal to provide reasons – in respect of which there is a right of appeal (see LS v LB Lambeth (HB) [2010] UKUT 461 (AAC); [2011] AACR 27), although neither an appeal nor judicial review could provide an adequate remedy in the circumstances of this case without there also being a challenge to the substantive decision.

6. At first sight, therefore, it appears that the Registrar was right that this application for permission to apply for judicial review must be transferred to the High Court under section 18(3) of 2007 Act, which requires the Upper Tribunal to transfer to the High Court any application for judicial review arising under the law of England and Wales that it does not have the function of determining.

7. However, it seems to me that it would be absurd to refer the High Court a case in which the Upper Tribunal could perfectly well provide an adequate remedy had it been brought by way of an application for permission to appeal rather than by way of an application for permission to apply for judicial review.  The reason that the legislation and the Practice Direction are drafted as they are is that it is not envisaged that there will be any overlap between judicial review proceedings and appeals.  If there is a right of appeal, it is assumed that the challenge to the decision of the First-tier Tribunal will be made by way of an appeal.  In these circumstances, I am satisfied that, if judicial review proceedings are brought against a decision of the First-tier Tribunal in respect of which there is a right of appeal, the application for permission to apply for judicial review may, and generally should, simply be treated – in the alternative rather than additionally – as an application for permission to appeal.  It is unlikely to be in anyone’s interest that the Upper Tribunal should be under a duty to transfer the application to the High Court under section 18(3) of the 2007 Act.

8. There is one procedural problem.  It is a statutory requirement, under rule 21(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698 – hereinafter “the Upper Tribunal Rules”), that a would-be appellant apply to the First-tier Tribunal for permission to appeal before applying to the Upper Tribunal and that the First-tier Tribunal should have refused permission or refused to admit the application.  However, the requirement may be waived by the Upper Tribunal.  Rule 7(2)(a) of the Upper Tribunal Rules makes express provision for waiver of a requirement in the Rules with which a party has failed to comply, which would be the case if a would-be appellant fails to make an application to the First-tier Tribunal for permission to appeal.  A more general, albeit implicit, power of waiver can, in my view, be derived from rule 7(1) of the Upper Tribunal Rules, which provides that “[a]n irregularity resulting from a failure to comply with a requirement of the Rules does not itself render void the proceedings or any step taken in the proceedings”.  The power implied by that provision can be relied upon if, for instance, a would-be appellant makes an application to the First-tier Tribunal for permission to appeal but that tribunal fails to act on it.  (Alternatively, perhaps in such circumstances the First-tier Tribunal could be taken implicitly to have refused to admit the application for the purpose of rule 22(2)(b)).  The Upper Tribunal will rarely exercise any power to waiver the requirement imposed by rule 21(2) of the Upper Tribunal Rules, because making an application to the First-tier Tribunal for permission to appeal gives that tribunal an opportunity to consider reviewing its decision under section 9 of 2007 Act (see rule 39(1) of the First-tier Tribunal Rules).  However, waiver may be appropriate where, for instance, the would-be appellant is not significantly at fault.

9. Moreover, in the present case, the decision of First-tier Tribunal of 15 September 2011 has clearly been rendered wrong in law as a result of the First-tier Tribunal’s breach of the duty imposed on it by rule 34(5) of the First-tier Tribunal Rules to provide a full statement of reasons on request. 

10. In these circumstances, I asked the parties if they would have any objection to me giving a decision in the terms of the decision set out above.  Neither the Secretary of State, who has taken over the functions of the Commission, nor the First-tier Tribunal, the respondent in the judicial review proceedings, has any objection.  The father, understandably, has expressed a preference that the First-tier Tribunal’s decision be upheld.  It accepted his evidence and he says that the Applicant has no further evidence.  On the other hand, the Applicant argues that the First-tier Tribunal too readily accepted the father’s oral evidence in the absence of documentary evidence.

11. I do not consider that further investigation at this level of the merits of the respective parties’ cases is appropriate.  The Applicant has potentially been prejudiced by the absence of a statement of reasons, to which she had a right.  In these circumstances, the First-tier Tribunal’s decision cannot stand unless it can be shown that it reached the only decision that was conceivably open to it.  On the limited material before me, that cannot be said to be the position and it is very unlikely to be the position in this sort of case.  It may well be that the First-tier Tribunal reached a decision it was entitled to reach on the evidence before it.  However, in the absence of a statement of reasons, I cannot be satisfied that it did not err in law in its approach.  Thus, the father has also been potentially prejudiced by the absence of the statement of reasons.

12. I am quite satisfied that this is not a case that should be referred to the High Court but is a case that should be re-determined as quickly as possible by the First-tier Tribunal.  Accordingly, I treat the application for permission to apply for judicial review as an application for permission to appeal, I waive the requirement that an applicant first apply to the First-tier Tribunal for permission to appeal, I grant permission to appeal, allow the appeal, set aside the First-tier Tribunal’s decision and remit the case to the First-tier Tribunal for re-determination by a differently-constituted panel.

Mark Rowland

8 January 2013