JTC v Secretary of State for Defence (AFCS) [2025] UKUT 355 (AAC)

[2025] UKUT 355 (AAC)Appeal No. UA-2024-001439-AFCSIn The Upper Tribunal Administrative Appeals Chamber
Between
JTCApplicant-v-
Between
Secretary of State for DefenceRespondentBefore: Upper Tribunal Judge ChurchHearing Hearing date: 3 July 2025Hearing Venue: Field House, LondonAppellant: Mr Tom Webb, of counselRespondent: Mr Paul Carolan, Veterans UK (written submissions only)On appeal from:Tribunal: First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber)First-tier Tribunal No.: AFCS/01265/2019Tribunal Venue: Fox Court, LondonDecision Date: 22 February 2023SUMMARY OF DECISION34 Tribunal Procedure and Practice; 34.8 Set aside applicationsThe Upper Tribunal usually only publishes decisions on substantive appeals. This application for setting aside of the Upper Tribunal’s refusal of permission to appeal raises issues about the scope of the Upper Tribunal’s powers to set aside its decisions. Because these issues tend to arise only in cases in which the Upper Tribunal has refused permission to appeal, the decisions about them do not receive public scrutiny. This decision is therefore published in the interests of transparency.The application for set aside was dismissed on the basis that the Upper Tribunal has no power to set aside a decision on permission to appeal on the basis that a party, or a party’s representative, was not present at a hearing related to the proceedings in circumstances where no hearing had been requested and the decision was made on the papers, whether under the Tribunal Procedure (Upper Tribunal) Rules 2008 or exercising the powers of the High Court (whether statutory or inherent) invested in it under section 25 of the Tribunals, Courts and Enforcement Act 2007.Please note that the Summary of Decision is included for convenience of readers. It does not form part of the decision. The Decision and Reasons of the judge follow.notice of determination of application to set asidea decision of the upper tribunalThe application to set aside the decision dated 23 January 2025 refusing to extend time for Applicant to make his application for permission to appeal to the Upper Tribunal and refusing to admit the application for permission to appeal is dismissed.REASONSDate 2025-10-14

Background

[1]The Applicant (to whom I shall refer as the “claimant”) served in the Royal Navy from 1990 until 2015. In 2005 he was involved in a traumatic episode while on tour in Iraq. It is agreed that this caused him to develop post-traumatic stress disorder (“PTSD”). The claimant continued to serve in the Royal Navy for a further ten years in a variety of roles until his discharge in 2015. He made a claim under the Armed Forces Compensation Scheme.[2]On 17 February 2016 the Respondent (to whom I shall refer as the “Secretary of State”) made an award which placed the claimant’s accepted condition of PTSD at Table 3, Item 4, Level 12 of Schedule 3 to the Armed Forces and Reserve Forces (Compensation Scheme) Order 2011 (the “SoS Decision”).[3]The claimant appealed the SoS Decision, which was upheld by a panel of the First-tier Tribunal, but that decision of the First-tier Tribunal was set aside following the claimant’s successful appeal to the Upper Tribunal before me. I decided that the First-tier Tribunal had fallen into error in its approach to the issue of “permanence”. I remitted the matter to the First-tier Tribunal for re-hearing by a different panel.[4]On 22 February 2023 a three-member panel of the First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber) convened at Fox Court to hear the claimant’s remitted appeal against the SoS Decision (the “Tribunal”).[5]The Tribunal allowed the claimant’s appeal in part, deciding that the test for permanence was met and the claimant’s PTSD was “moderate” (rather than “severe”, as the claimant had argued) and an award at Table 3, Item 2, Level 8 of Schedule 3 to the AFCS Regulations was therefore appropriate (the “FtT Decision”). Full written reasons for the FtT Decision were issued on 5 June 2023.[6]Between the date of the FtT Decision and the date of the claimant’s application to the First-tier Tribunal for an extension of time to apply for permission to appeal the FtT Decision, the Court of Appeal handed down judgment in Pearson v SSD[2024] EWCA Civ 150 (“Pearson”). That case raised some issues that the claimant says bear on the issues in his appeal about the proper interpretation of the descriptors for Level 6 and Level 8, and that had the Tribunal approached the interpretation of the Table 3 descriptors in the way the Court of Appeal did in Pearson,it would have found his mental disorder to be “severe” and would have made an award at Table 3, Item 1, Level 6.[7]On 30 September 2024 the claimant’s solicitors made an application to the First-tier Tribunal for an extension of time to admit an out of time application for permission to appeal to the Upper Tribunal. On 8 October 2024 the President of the First-tier Tribunal (WPAFC) refused to extend time and refused to admit the application.[8]The claimant then renewed his application to the Upper Tribunal, asking it to:a. grant an extension of time to make his application for permission to appeal the FtT Decision to the Upper Tribunal (with the result that it would be treated as “in time”),b. admit his application for permission to appeal, andc. grant permission to appeal to the Upper Tribunal.[9]On 23 January 2025 I refused to extend time and therefore refused to admit the application for permission to appeal (the “Permission Disposal Decision”). I gave reasons for my decision.

The application

[10]On 14 February 2025the claimant applied for the setting aside of the Permission Disposal Decision under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (the “UT Rules”). It was argued that, because the Permission Disposal Decision was made in the absence of the parties, rule 43(2)(c) of the UT Rules was engaged, and the sole question for the Upper Tribunal was therefore whether setting aside the Refusal to Admit would be in the interests of justice.[11]The claimant asked the Upper Tribunal to:a. set aside the Permission Disposal Decision, extend time for the making of the application for permission to appeal, admit the application for permission to appeal, grant permission to appeal and direct an oral hearing of the substantive appeal; or alternativelyb. direct a rolled-up oral hearing of the set aside application, the extension of time application and the permission application.[12]On 12 March 2025 I allowed the application for a rolled-up hearing and directed the parties to serve skeleton arguments. I explained my reasons for doing so as follows:
“16. This application raises an issue on the proper interpretation of rule 43(2)(c), namely whether it applies only if there has actually been a “hearing” before the Upper Tribunal, or whether it can be relied upon where, as here, the Upper Tribunal has made the decision disposing of the proceedings on the papers. 17. In JC v SSWP (DLA)[2013] UKUT 0171 (AAC) (“JC v SSWP”) the Upper Tribunal considered rule 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2008 (the “FtT SEC Rules”). The wording of rule 37 of the FtT SEC Rules tracks the wording of rule 43 of the UT Rules, and indeed the wording of rule 35 of the Tribunal Procedure (First-tier Tribunal) (War Pensions and Armed Forces Compensation Chamber) Rules 2008. 18. In JC v SSWP, Judge Turnbull decided that the rule was applicable only in circumstances where a hearing had actually taken place, and not where the matter was decided on the papers only, because a party or a party’s representative cannot properly be said not to have been present at a hearing that didn’t take place. 19. JC v SSWP is binding on the First-tier Tribunal, but it is not binding on the Upper Tribunal. The decision has been the subject of criticism in the commentary to the FtT Rules in the 37th edition of the CPAG Housing Benefit and Council Tax Reduction Legislation, and the Upper Tribunal commented (obiter) in JG v SSWP[2024] UKUT 329 (AAC) that it had been open to the First-tier Tribunal judge in that case to set aside a paper determination under rule 37(2)(c) of the FtT SEC Rules. 20. I consider that the holding of an oral hearing so that I can decide the matter in the context of the UT Rules, with the benefit of submissions from counsel, would best further the interests of justice…”

The oral hearing

[13]An oral hearing took place at Field House, London on 3 July 2025. The claimant attended and was represented by Mr Tom Webb of counsel. The Respondent did not attend and was not represented, but served a skeleton argument resisting the application.[14]I am grateful to Mr Webb not only for his clear and helpful submissions but also for accepting the instruction to act on this application pro bono.[15]As was prefigured in his skeleton argument, the case that Mr Webb presented in favour of setting aside the Permission Disposal Decision at the hearing differed significantly from that which he had outlined in the application of 14 February 2025. He abandoned reliance on rule 43(2)(c), and based his case instead on the powers invested in the Upper Tribunal by section 25 of the Tribunals, Courts and Enforcement Act 2007 (“TCEA 2007”).[16]The Respondent resisted the application solely on the basis that the circumstances of this case did not fall within rule 43 of the UT Rules, and did not address Mr Webb’s arguments relating to section 25 TCEA 2007.

The statutory scheme

[17]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.[18]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.[19]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 25 (1) In relation to the matters mentioned in subsection (2), the Upper Tribunal- (a) has, in England and Wales or in Northern Ireland, the same powers, rights, privileges and authority as the High Court, and (b) has, in Scotland, the same powers, rights, privileges and authority as the Court of Session. (2) The matters are- (a) the attendance and examination of witnesses, (b) the production and inspection of documents, and (c) all other matters incidental to the Upper Tribunal’s functions. (3) Subsection (1) shall not be taken- (a) to limit any power to make Tribunal Procedure Rules; (b) to be limited by anything in Tribunal Procedure Rules other than an express limitation. …”
[20]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.[21]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. ...” (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. ...”
[22]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.[23]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.” (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.”
[24]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. …” (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. …”
[25]“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”
[26]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). …” (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.

Discussion

(c) of the UT Rules

[27]Notwithstanding that Mr Webb abandoned his argument that I had the power to set aside the Permission Disposal Decision under rule 43(2)(c), because I was persuaded to direct the oral hearing at least in part on the basis that there was value in the Upper Tribunal seeking to resolve the apparent conflict between the Upper Tribunal’s decisions in JC v SSWP and in JG v SSWP (in relation to the corresponding provision of the FtT SEC Rules, which is in substantially the same terms as rule 43(2)(c)), I shall address briefly the proper interpretation of rule 43(2)(c) and its application to the circumstances of this case.[28]The application for set aside under rule 43(2)(c) was initially put on the basis that that provision applied because the Permission Disposal Decision “disposes of the proceedings and was made in the absence of the parties”. However, that is to mis-state the test under rule 43(2)(c): that rule does not apply whenever the Upper Tribunal makes a decision “that disposes of proceedings in the absence of the parties”. Rather, it applies where “a party, or a party’s representative, was not present at a hearing related to the proceedings”. There is a difference.[29]In our case there was no oral hearing before the Upper Tribunal. The claimant’s solicitor, who completed the UT6 form, didn’t ask for one. In the UT6 form, where asked whether the claimant or his representative wished to have an oral hearing before the Upper Tribunal at permission stage, she ticked the “No” box and explained in the narrative box that the claimant was: “content for the application for permission to be dealt with on the papers, including application for extension of time to appeal, unless it is considered necessary to hear from the [claimant] on any matter”.[30]This gives rise to the rather philosophical question of whether a party, or a party’s representative, can be said not to have been present at a hearing that didn’t take place.[31]In JC v SSWP Judge Turnbull pointed out that rule 1(3) of the UT Rules provides that the word “hearing” (where it appears in the UT Rules) means “an oral hearing and includes a hearing conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication”. Judge Turnbull decided that where a case was determined without any of the parties being entitled to be present, there was no “hearing” for the purposes of rule 37(2)(c) of the FtT Rules, even where the tribunal convened as a panel to decide the case on the papers. Judge Turnbull, who had given permission in that case, said (at [14]):
“I therefore think that it is clear that I was wrong, at the time of giving permission to appeal, in stating that Rule 37(2)(c) applied. It is in my view clear that it did not apply, because there was no oral hearing. That would plainly have been so if this had been a type of case heard by a First-tier Tribunal judge alone.

(c) ”

[32]The editors of the 37th edition of the CPAG Housing Benefit and Council Tax Reduction Legislation have criticised

Judge Turnbull’s decision in the following terms:

“With respect to the judge, the point is not just whether “hearing” in rule 37(2)(c) means “oral hearing” (which, for the reasons given by the judge, it clearly does). The point is rather whether one can be “present” at an oral hearing which does not take place (which one equally clearly cannot). The salaried First-tier Tribunal judge to whom the application is referred must therefore ask themself, “Was the relevant party or representative present at a hearing related to the proceedings?”
If no hearing has taken place, the answer to that question must be no, in which case why does the paragraph not apply? This is not merely semantics. Interpreting para (2)(c) in the way the First-tier Tribunal is now bound to do creates an undesirable lack of flexibility in the application of the rule. Most salaried judges will have come across circumstances in which procedural injustice has occurred because a party has been ill-advisedly chosen to have a decision without a hearing but in which there has been no procedural irregularity within para (2)(d). The most obvious example occurs when the appellant (whose command of English may not be perfect), ticks the wrong box on the enquiry form, but there are many others. Reading para 2(c) as if it said “there has been a hearing related to the proceedings and a party, or a party’s representative was not present at it”, prevents the tribunal from doing justice in such circumstances, because there will be no ground for setting the decision aside, no matter how much it is in the interests of justice to do so.”[33]I disagree. In their commentary the editors make the same mistake that was made in the original application for set aside in these proceedings: misstating the test in the procedure rules. The editors say that

the judge considering a set aside application must ask:

“was the relevant party or representative present at a hearing related to the proceedings?”
.

(c) requires them to ask is:

“was the relevant party or representative not present at a hearing related to the proceedings?”
That is a different question, and in a case such as this where there was no oral hearing, it demands a different answer.[34]Absence (or non-presence) can arise only in relation to an event. If there is no event, there can be no absence from it. One cannot fail to attend something that doesn’t occur. Just as it is clear to the editors of the CPAG Housing Benefit and Council Tax Reduction Legislation that one cannot be “present” at an oral hearing which does not take place, it is clear to me that one cannot “not be present” at an oral hearing which does not take place.[35]The Upper Tribunal considered the set aside provisions under the FtT SEC Rules again in JG v SSWP, a case in whichthe appellant (“JG”) had asked for his appeal to be determined on the papers. The First-tier Tribunal duly did so, dismissing JG’s appeal (the “JG Appeal Dismissal”). JG then made various applications, including an application that the JG Appeal Dismissal be set aside. He did not specifically reference rule 37(2)(c) or mention the fact that the JG Appeal Dismissal had been reached without a hearing. A salaried judge of the First-tier Tribunal set aside the JG Appeal Dismissal under rule 37(1)(a) and 37(2)(c) of the FtT SEC Rules on the basis that:a. JG had said that he had wanted to attend a hearing of his appeal; andb. it was in the interests of justice to set aside the decision.[36]Correspondence followed, in which JG insisted he had never asked for an oral hearing of his appeal, and he couldn’t and wouldn’t attend any oral hearing. Rather convoluted proceedings followed, culminating in JG applying to the Upper Tribunal for permission to appeal a further decision of the First-tier Tribunal which purported to set aside the setting aside of the JG Appeal Dismissal.[37]One of the issues considered by the Upper Tribunal judge who dealt with the permission application was whether it was open to the First-tier Tribunal judge to set aside the JG Appeal Dismissal, finding that it was open to the First-tier Tribunal to make its decision setting aside the JG Appeal Dismissal, reasoning as follows (at [20]):
“The [JG Appeal Dismissal] was a final decision bringing JG’s appeal to an end. It therefore disposed of proceedings within the meaning of rule 37(1) of the [FtT SEC Rules]. The salaried judge assessed that JG’s situation satisfied the circumstances in rule 37(2)(c) of the [FtT SEC Rules] and that it was in the interests of justice to set aside the [JG Appeal Dismissal]. It was open to the salaried judge to use the power in rule 37 to make this decision.”
[38]The judge appears to have accepted the First-tier Tribunal judge’s assessment that the conditions in rule 37(2)(c) were satisfied, rather than carrying out their own assessment of whether they were met, and the judge provided no analysis of the requirement that “ a party, or a party’s representative, was not present at a hearing related to the proceedings”.[39]JG v SSWP is a permission decision (not a substantive decision), and as such it has no authority as precedent. Perhaps for that reason, it provides only limited reasoning on rule 37(2)(c) and does not grapple with Judge Turnbull’s analysis in JC v SSWP. As such, I do not consider that it casts doubt on the continued applicability of JC v SSWP, which was correctly decided, and which the First-tier Tribunal should continue to follow.

Is there any other power to set aside?

[40]While Mr Webb accepted that the condition in rule 43(2)(c) was not satisfied in the circumstances of the present appeal, he argued that this was not fatal to the claimant’s application because rule 43 does not expressly preclude the Upper Tribunal from setting a permission decision aside in circumstances not contemplated by rule 43 using other powers enjoyed by it, and because paragraph 15(3) of Part 1 of Schedule 5 to TCEA 2007 expressly preserves any power to correct errors or set aside decisions that is exercisable apart from any rules made by virtue of sub-paragraphs 15(1) and (2), Part 1, Schedule 5 TCEA 2007. In other words, rule 43 does not define the “outer limit” of the Upper Tribunal’s power to set aside. I agree with Mr Webb thus far.[41]So, the next question to be addressed is:
“does the Upper Tribunal have any power to set aside a decision on permission other than under rule 43?”
Mr Webb said that it does, but one has to “cast the net a little wider” to find it.

Case management powers (rule 5)

[42]Mr Webb questioned whether the Upper Tribunal’s case management powers set out in rule 5 of the UT Rules, which include a power (subject to the TCEA 2007 and any other enactment) to regulate its own procedure, were broad enough to include such a power. He accepted, however, that while rule 5 refers to a power to make a direction setting aside an earlier direction, it does not refer to a power to make a direction setting aside an earlier decision. He noted that in JG v SSWPthe judge had expressed the view (at [29]) that were rule 5 to confer a power to set aside a decision (as opposed to a direction) it would need to say so expressly, and he did not take issue with JG v SSWP to that extent. Mr Webb said that he did not rely on rule 5 as the source of the Upper Tribunal’s power to set aside the Permission Disposal Decision.

Review of a decision (rule 45)

[43]The power of review (which brings a power of set aside) is available only in very limited circumstances, where the Upper Tribunal is considering whether to grant permission to appeal one of its own decisions. Even then, it is limited to circumstances in which the decision from which permission to appeal is sought is potentially inconsistent with a legislative provision or binding authority. In any event, it is not available in the case of a decision which is an “excluded decision” for the purposes of section 13(1) TCEA 2007, and section 13(8)(c) provides that a decision of the Upper Tribunal on an application under section 11(4)(b) (application for permission or leave to appeal) is an “excluded decision” for such purposes.[44]It was not argued that the power of review was available in this case.

Section 25 TCEA 2007

[45]Mr Webb relied instead on the Upper Tribunal’s powers under section 25 TCEA 2007, arguing that the question of whether to set aside the Permission Disposal Decision was a matter “incidental to the Upper Tribunal’s functions” (per section 25(2)(c) TCEA 2007), and so the Upper Tribunal enjoys the same powers that are available to the High Court in dealing with this application.[46]Mr Webb drew my attention to the Court of Appeal’s decision in R (on the application of Singh) v Secretary of State for the Home Department [2019] EWCA Civ 1014(“Singh”), which concerned a judicial review claim in the context of immigration proceedings. The circumstances of that case were that the Respondent’s counsel failed to appear at an oral hearing before the Upper Tribunal (Immigration and Asylum Chamber) to reconsider the matter of permission (permission having been refused on the papers). The judge proceeded with the hearing in the absence of counsel for the Respondent, apparently under a misapprehension that the Respondent had not intended to be represented. The judge granted permission in the Respondent’s absence. The judge later set aside her grant of permission (on a without notice application) and re-listed the matter for an oral hearing to give the Respondent’s counsel an opportunity to be heard. At the re-listed hearing the Upper Tribunal judge heard both counsel and ultimately refused permission. That refusal of permission was (by a rather circuitous route) appealed to the Court of Appeal on the ground that the Upper Tribunal had no power to set aside the grant of permission at the initial oral hearing.[47]Lord Justice Leggatt (as he then was), giving the judgment of the Court, considered the powers of the High Court and those of the Upper Tribunal. He said:
“The powers of the High Court 14. There is no doubt that, if the proceedings had been in the High Court, the High Court would have had that power. CPR 23.11(2) confers an express power on the court, where the applicant or any respondent fails to attend the hearing of an application and the court makes an order at the hearing, to re-list the application. It is implicit in the power to re-list the application that the court can set aside the order made at the hearing, even after it has been perfected, re-hear the application in full and make such different orders as the Court thinks appropriate: see Riverpath Properties Ltd v Brammall (31 January 2000, unreported). Even without that rule, the High Court undoubtedly has power, as part of its inherent jurisdiction to manage its proceedings in a just and effective manner, to set aside an order made in a party’s absence and re-hear a matter if it subsequently appears that the party’s absence occurred as a result of a mistake for which it was not to blame. Indeed, to do otherwise in such circumstances would be to deny the absent party its fundamental common law right to participate in the proceedings in accordance with the principle of natural justice. It is a basic rule that the court must exercise its power to regulate its procedure in a way which respects that principle: see e.g. Al Rawi v Security Service [2011] UKSC 34; [2012] 1 AC 531, para. 22. 15. Although CPR 54.13 provides that neither the defendant nor any other person served with the claim form may apply to set aside an order giving permission to proceed with a claim for judicial review, this rule does not prevent the High Court from exercising its inherent power to set aside an order made in circumstances where an interested party has not had a fair opportunity to be heard: see R (Webb) v Bristol City Counsil [2001] EWHC 696 (Admin); R (Enfield Borough Council) v Secretary of State for Health [2009] EWHC 743 (Admin), para. 3. … Section 25 of the 2007 Act 17. It is not necessary to decide whether the Upper Tribunal has similar inherent powers to those of the High Court at common law or by virtue of its designation in section 3(5) of the Tribunals, Courts and Enforcement Act 2007 as a “superior court of record” because section 25 of that Act expressly confers such powers on the Upper Tribunal…”

Section 25 of the 2007 Act

[48]Lord Justice Leggatt saw no reason to give section 25 TCEA 2007 a restrictive interpretation. He quoted the words of Martin Rodger KC, then Deputy President of the Upper Tribunal (Lands Chamber) in William Hill Organization Ltd v Crossrail Ltd [2016] UKUT 275 (LC) at para. 59:
“Parliament was obviously aware of the powers of the High Court, both those which are inherent, and those specifically conferred by statute. Section 25 therefore seems to me to be intended to be read literally and applied generally, and to invest the Upper Tribunal with the powers of the High Court in relation to all matters incidental to its functions; the critical limitation in section 25(2)(c) is supplied by the reference to the functions of the Tribunal, and does not depend on the source of the power or the terms in which it has been conferred on the High Court. Parliament could obviously make explicit an intention that the Upper Tribunal was not to possess a particular power, but where it has not done so, and where no express limitation has been imposed by tribunal procedure rules as contemplated by section 25(3)(b), the Upper Tribunal must be taken to have the same powers as the High Court in relation to all matters incidental to its functions.”
[49]Lord Justice Leggatt found that, pursuant to sections 15 and 16 of TCEA 2007, one of the functions of the Upper Tribunal was to deal with applications for judicial review and, as an aspect of that function, to decide whether or not to grant permission to bring judicial review proceedings. He said:
“Considering whether to set aside a decision to grant such permission taken in the absence of the respondent and to re-hear the application is a matter incidental to this function. Pursuant to section 25 of [TCEA 2007], therefore, the Upper Tribunal has the same powers in dealing with the matter as would the High Court. It would be anomalous of the position were otherwise and if the Upper Tribunal, when exercising a judicial review jurisdiction similar to that of the High Court, lacked a power which the High Court has as an essential part of its procedural repertoire to manage its proceedings in a just and effective manner.”
[50]Pursuant to section 11 of TCEA 2007, another of the functions of the Upper Tribunal is to consider applications for permission to appeal. Considering whether to set aside a decision concerning permission is a matter incidental to that function. However, there is an important difference between the present case and the case of Singh,because while there was an oral hearing before the Upper Tribunal in Singh, there was no oral hearing in the appeal before the Upper Tribunal in this case, and because the claimant, having opted to have his application dealt with on the papers, had no right to renew his application at an oral hearing.[51]Had these proceedings been in the High Court the power to re-list the claimant’s permission application under CPR 23.11(2) would not arise, because neither the applicant nor any respondent had failed to attend the hearing of an application.[52]Neither would the power arising from the High Court’s inherent jurisdiction to manage its proceedings in a “just and effective manner” identified by Lord Justice Leggatt arise, because that power is predicated on a party having been absent from a hearing “as a result of a mistake for which it was not to blame”.[53]Lord Justice Leggatt’s rationale for having such a power would not apply in the current case because the remedy of set aside not being available to the claimant does not deny him the “fundamental common law right to participate in the proceedings in accordance with the principle of natural justice”. The reason the Upper Tribunal did not hear from the claimant was not because of some mistake in which he had no part: it was because he declined the opportunity of an oral hearing by ticking the “No” box on his appeal form. In these circumstances it cannot be said that he has not had a fair opportunity to be heard.[54]Mr Webb argued that there “must” be an inherent power to set aside permission decisions made on paper. He said it would be curious were there to be no power to set aside a permission decision if, for example, following the decision it emerges that the applicant or the judge had made a fundamental mistake, or if the application had cited false authority or was otherwise fraudulent. However, I was not referred to any authority either for the proposition that there exists a general power to set aside a permission decision simply because that might be considered to be just, or a specific power to set aside a permission decision on the basis that a party had had no hearing where the reason for them not having had a hearing was that they had opted to have the matter determined on the papers. While Mr Webb placed reliance on Singh, as I have explained above it does not extend to a case such as this one.[55]In Singh Lord Justice Leggatt discussed Patel v Secretary of State for the Home Department [2015] EWCA Civ 1175 (“Patel”), another case concerning proceedings in the Upper Tribunal (Immigration and Asylum Chamber) which came before the Court of Appeal. In that case the Upper Tribunal judge granted permission to appeal the decision of the First-tier Tribunal at the start of the hearing and then began to hear the substantive appeal. When it became apparent that the appeal had been brought substantially out of time (a matter of which the judge had not been aware), the judge purported to revoke his decision to grant permission and to substitute for it a decision refusing permission. The Court of Appeal decided that the Upper Tribunal judge had had no power to reverse his decision on permission once he had uttered it. The Court of Appeal rejected an argument that the oral grant of permission was not a “decision” for the purposes of TCEA 2007. The Court in Patel acknowledged that the workings of the Upper Tribunal and the High Court differ: in the Upper Tribunal it is “decisions” that have legal force and from which an appeal lies, while in the High Court it is “orders”. While the effectiveness of a decision delivered orally in the High Court is qualified or postponed by the process of drawing up and perfecting the order implementing the decision, there is no equivalent procedure in the Upper Tribunal.[56]Lord Justice Leggatt acknowledged (in Singh at [34) that the inherent power of the High Court to vary or revoke a decision at any time before the order recording the decision is perfected is not a power that is capable of transposition to proceedings in the Upper Tribunal. He recognised that that is simply not the way that the Upper Tribunal works, and that the difference should be respected.[57]It follows from this reasoning that the powers, rights and privileges of the High Court that section 25 TCEA 2007 bestow on the Upper Tribunal do not require the Upper Tribunal to conform the way it carries out its functions to the way that the High Court does. So, where the UT Rules provide expressly for a right of oral renewal in respect of permission decisions in respect of proceedings in some chambers of the First-tier Tribunal but not in others, section 25 TCEA 2007 does not invest it with a power to set aside a decision on permission on the basis that the High Court may not operate such a distinction where a permission filter applies.[58]For these reasons, while I accept Mr Webb’s submission that rules 43 and 45 do not define the “outer limit” of the Upper Tribunal’s power to set aside its own decisions, because section 25 TCEA 2007 invests it with both the statutory and inherent powers of the High Court in relation to “all matters incidental to its functions”, I am not persuaded that there is a power enjoyed by the High Court and transposable to the Upper Tribunal, the exercise of which would permit the setting aside of the Permission Disposal Decision.[59]I therefore conclude that I have no power to set aside the Permission Disposal Decision.[60]Accordingly, I dismiss the application. Thomas Church Judge of the Upper Tribunal Authorised for issue on 14 October 2025 and corrected pursuant to rule 42 of the UT Rules on 14 November 2025

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