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Decision in brief

Test of 'genuine and sufficient' connection to Great Britain - applying R(IS) 8/06, residence in Gibraltar does not count as residence in Great Britain - applying decision of European Court of Justice in Case-503/09 Lucy Stewart (21 July 2011 ), claimant able to benefit from European law cannot be denied entitlement on basis of residence requirement, if can show a genuine and sufficient link to Great Britain (paragraphs 45-52) - claimant had a British passport, lived in UK for a few years, had an employment history with connection to UK and was in receipt of a UK contributory pension and was entitled to a Christmas bonus - but had not lived in UK since 1964 and had no current family connections with UK, and lived in the Isle of Man and then Gibraltar from 1998- balancing this, claimant did not have a genuine and sufficient connection with Great Britain, but test must be applied taking account of the particular benefit being claimed (paragraphs 56-60) (see also SSWP v JG (RP))

Summary

The claimant had chronic fatigue syndrome. He was assessed as having limited capability for work, but not as having limited capability for work-related activity - ie, he was not put in the support group. He appealed, arguing that the tribunal had misapplied Activity 1 of the assessment for limited capability for work-related activity. In particular, it had failed to deal with descriptor (b) of the activity, which applies where a claimant cannot 'repeatedly mobilise 50 metres with(n a reasonable timescale because of significant discomfort or exhaustion'. The claimant also argued that the tribunal had failed to deal with his argument that the exceptional circumstance rule at regulation 35(2)(b) of the Employment and Support Allowance Regulations 2008, SI No.794 applied, so that he should be placed in the support group on the grounds of 'substantial risk' to his health if he were not.

Judge Jacobs allowed the claimant's appeal, setting the tribunal decision aside and remitting it to a new tribunal. The tribunal had erred in failing to make sufficiently detailed findings of fact regarding the claimant's ability to mobilise with regard to Activity 1 (paragraph 22). It had, for example, failed to explore what he meant when he said he could not mobilise 'repeatedly'. However, the judge refused to attempt to define what the words 'repeatedly', 'reasonable timescale' or 'significant discomfort', as they appear in the descriptor, meant. That would be the wrong approach to statutory interpretation and 'trespass impermissibly into the role of the First-tier Tribunal'. It was not for the Upper Tribunal to give more specific content to the law than the language in the legislation (paragraph 19). Rather, held the judge, 'The key to applying the words of Activity 1 lies in making findings of fact relevant to those words that are as specific as the evidence allows' (paragraph 20).

Turning to the exceptional circumstance rule and in particular that regarding 'substantial risk', the judge noted that the approach of the Court of Appeal in Charlton v Secretary of State for Work and Pensions, reported as R(IB) 2/09, applied to ESA. The Court's reasoning could be applied to regulation 35(2)(b) (ie, regarding the support component) in the context of the effect of the decision of not being placed in the support group and having to undertake work-related activity, including travel to it (paragraph 25). In terms of what work-related activity was under consideration, the effect was that, 'The decision maker must assess the range or type of work-related activity which a claimant is capable of performing and might be expected to undertake sufficiently to assess the risk to health either to himself or to others' (paragraph 26). Evidence about the work-related activity and about the claimant's health was key to that. Sometimes the claimant's disabilities will be such that only general information is required - eg, where the claimant's only disability is restricted mobility. it will be clear that s/he should be able to attend an interview or training course. But in other cases, such as this where there was also evidence of fatigue and an argument that work-related activity would impact on that, more specific evidence of the kind of work-related activity the claimant might be expected to undertake was required (paragraphs 27-32).

Summary

The issues before the judge in this decision were whether the claimant could be treated as having limited capability for work as someone 'undergoing medical or other treatment as an in-patient in a hospital or similar institution' or if the day in question was 'a day of recovery from that treatment', as provided for under regulation 25 of the Employment and Support Allowance Regulations 2008 No.794.

The claimant had been living in a residential treatment centre for people with gambling addictions, and then (by the time the decision on his ESA claim was actually made) had moved to 'halfway house' accommodation.

Judge Wikeley held that the First-tier Tribunal had failed to consider whether the claimant could benefit from regulation 25, and so was in error on that basis, with the result that a new tribunal would have to consider it (paragraphs 9-11). Giving guidance to the tribunal, the judge held that the expression 'medical or other treatment' had been considered by the Court of Appeal (albeit in a different context) in Secretary of State for Work and Pensions v Slavin [2011] EWCA Civ 1515; [2012] AACR 30. Although that was a case about disability living allowance, the judge considered that the same meaning should apply to the phrase in the context of ESA (paragraph 16). In Slavin, importance was placed on whether the claimant received treatment from qualified doctors or nurses; in the present case the question would be one of fact for the new tribunal, but it would need to explore questions like how the appellant was referred to the treatment centre, who admitted him and what were her/his professional qualifications and who had overall charge of the centre and the claimant's treatment programme (and again what were her/his qualifications) (paragraphs 17-19). For the meaning of 'in-patient', the proper meaning was the subject of CJ v SSWP (ESA) [2012] UKUT 201 (AAC). Again, however, the question was ultimately one of fact for the new tribunal (paragraphs 20-22).

As to the meaning of 'hospital or similar institu1ion' that was not defined, but had been considered by the Court of Appeal in White v Adjudication Officer (1993), reported as R(IS) 18/94, and also applied in Slavin. For the judge, it was unlikely that the treatment centre in this case was a hospital, but it might be a 'similar institution'. He cited official guidance in the Decision Makers Guide that 'an institution caring for former alcoholics, drug addicts or psychiatric patients which provides a degree of medical treatment or rehabilitation by trained nursing staff may be a similar institution to a hospital' (paragraphs 23-26). (He also noted that regulation 25 had been amended from 28 March 2011 to provide that it was to include treatment 'where the claimant is attending a residential programme of rehabilitation of drug or alcohol addiction.' However, this came into force after the date of the decision under appeal in the present case, and did not cover gambling addiction.) Again, whether the claimant was covered was ultimately one of fact for the new tribunal, as was the application of the rule to the 'halfway house' that the claimant was in at the time of the decision under appeal. Even if not a 'hospital or similar institution', it was possible that the halfway house was somewhere where the claimant was recovering from such treatment. In addressing that, the tribunal would need to take a 'common-sense' view, and adopt the purposive approach taken in CJ v SSWP- ie, that regulation 25 should apply only to those with medical conditions requiring hospital treatment and recovery from that treatment such the resulting limitation on capability could be assumed to be sufficiently serious, without the need to test it (paragraphs 27-32).

Comment from CPAG

Note that the judge thought it possible that, depending on the individual facts, someone receiving treatment for gambling addition or recovering from it can be covered by regulation 25, even though the March 2011 amendments refer specifically only to drug or alcohol addiction.

Summary

The claimant was assessed as having limited capability for work, having scored 15 points in that part of the work capability assessment. However, he was not assessed as having limited capability for work-related activity- ie, and so was not put in the support group. The First-tier Tribunal upheld the decision that he scored no points in that part of the assessment, in particular that Activity 13 and its accompanying descriptor did not apply. That activity is 'coping with social engagement due to cognitive impairment or mental disorder'; the descriptor requires that, 'engagement in social contact is always precluded due to difficulty relating to others or significant distress experienced by the individual'.

Judge Parker upheld the claimant's further appeal, holding that on a proper construction of the wording of the descriptor, the claimant satisfied the test. The claimant's representative had argued that, although the claimant was on occasion able to engage in social contact, the descriptor was nevertheless satisfied as regulation 34(2) of the Employment and Support Allowance Regulations 2008, Sr No. 794 applied throughout the work capability assessment and provided that a descriptor applied to a claimant, if it applied 'for the majority of the time...'. The Secretary of State argued by contrast that regulation 34(2) only applied where the wording of the descriptor concerned did not exclude that possibility, and that here the Activity 13 descriptor excluded it as it required that social contact was 'always' precluded.

The judge held that regulation 34(2) must be given some application, if that was possible without a strained construction. It was possible. That was because the word 'always' as defined in the Concise Oxford and other dictionaries had a primary meaning of 'every time', but also a secondary meaning of 'repeatedly, persistent' (paragraph 13). Applying that, the judge held that 'always precluded', as used in Activity 13 (and also in Activity 16 of the limited capability for work test), 'is not an all or nothing test; rather, it means "repeatedly" or "persistent" or "often"' (paragraph 14). Such a meaning, when combined with regulation 34(2), meant that for the descriptor to apply it had to apply with a greater frequency than a simple bare majority of the time. Whether it did in the individual case was a matter of fact and degree, and to be applied in a common sense way. On the facts of this case, where the claimant could only engage in very limited social contact when visiting his doctor and when attending the tribunal, it did apply (paragraph 14). However, the judge accepted the Secretary of State's argument that the social activity to be taken into account did have to include contact with people such as doctors and lawyers, and could not be restricted to voluntary, informal contact with people like friends and relatives (paragraph 17).

Summary

The claimant had been entitled to disability living allowance (DLA). She had married her appointee. Following an investigation the award was terminated from a point in the past, with a resulting overpayment that was held to be recoverable from the appointee. Both the claimant and the appointee appealed. Also, the appointee was charged with fraud for failing to disclose a relevant change in the claimant's circumstances (an improvement in her capabilities) that he knew would affect her entitlement. It was unclear whether the appointee had pleaded guilty or not guilty; however he was convicted before the tribunal hearing took place. The tribunal rejected the appeal (seemingly it treated only the appointee as a party) holding that in the absence of fresh evidence indicating that the conviction was wrong, the conviction was a complete bar to the appeal.

Judge Mark allowed the further appeal of the claimant and the appointee and remitted the case to a new tribunal The tribunal had erred in holding that the conviction was a complete bar to the appeal. Also, it was the job of the tribunal also to determine the claimant's entitlement to DLA as part of the appeal. She was not a party to the criminal proceedings, had not been convicted of anything and the conviction of the appointee was not in itself evidence which could be relied on against her, although the evidence relied on before the criminal court could be evidence against her if relevant (paragraph 7).

In so holding the judge reviewed the caselaw on the matter of criminal convictions and the weight to be given to them by tribunals. He adopted the view that 'a conviction represents no more than the opinion of the criminal court that the party in question was guilty of the offence charged and that that opinion, not being expert evidence, was not admissible in other proceedings, because it has no probative value' [ie, sufficiently useful to be proof] (paragraph 24). A separate question was whether there was a public policy requirement that might preclude a convicted person from challenging his conviction - eg, in a social security appeal. Reviewing the authority, the judge held that in general it was contrary to public policy to allow this. However, a party could seek to explain the circumstances of the conviction and the facts on which it was based, without seeking to challenge those facts, and that if there was convincing new evidence that the conviction was wrong they could be permitted to challenge the conviction (paragraphs 32-33). Otherwise, a tribunal should treat any attempt to challenge the primary findings of fact made by the criminal court, or the admissions involved in the pleas of guilty and any inference from those made by the court as against public policy and refuse to permit it, except upon the basis where such challenges were in any case permissible under section 11 of the Civil Evidence Act 1968 (paragraph 34).

However, an exception applied about application of the benefit rules to the facts. The social security tribunal was a specialist tribunal, and it seemed to the judge that 'there should be an exception to the general rule of public policy to the extent that the specialist tribunal should be able, in appropriate cases, to substitute its own findings as to social security law for that of the criminal court, and should be able to make its own findings as to the inferences and conclusions to be drawn from the primary facts found by, or admitted to the criminal court, as to the abilities or otherwise of the claimant and his entitlement to benefit' (paragraph 36). Therefore, the new tribunal in the present case should take into account the evidence that was before the criminal court and the admissions involved In any guilty plea by the appointee when considering the benefit entitlement of the claimant, but should not be bound by the conviction of the appointee on its findings on the claimant's claim (paragraph 38).

Summary

The claimant had her entitlement to disability living allowance removed following a reassessment. Her appeal to the First-tier Tribunal was dismissed. Her representative applied for a statement of reasons, then wrote requesting permission to appeal. The tribunal judge (a fee-paid judge) then provided additional reasons for the decision, which were sent to a district tribunal judge (the salaried judge) as part of the district tribunal judge's consideration of the request for permission to appeal. That judge sent a decision saying that the tribunal had decided to review its decision on the basis of an error of law and as a consequence had amended its reasons. Those reasons were sent with the decision, and parties were informed of their ability to appeal to the Upper Tribunal within a month of the date of the amended reasons.

In a three-judge panel of the Upper Tribunal, Chamber President Charles and Judges Jacobs and Wright allowed the claimant's further appeal, and remitted the case to a new tribunal. On appeal, the Upper Tribunal's jurisdiction included considering whether additional reasons were properly added under the review power. The original (ie, unamended) reasons in this case contained an error of law in that they were too general in their analysis of the facts, and the additional reasons were improperly added on review, as they improperly provided a commentary on the grounds of appeal and attempted to provide a better, clearer explanation than the original reasons (paragraphs 60-63).

In so holding, the Upper Tribunal provided a commentary on the power, under section 9(4)(b) of the Tribunals, Courts and Enforcement Act 2007, by which a tribunal that reviews a decision may ‘amend reasons given for the decision. Firstly, the combined effect of section 9 and of rules 39 and 40 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules 2010, was that the First-tier Tribunal may only review a decision on an application for permission to appeal and where there was an error of law (paragraph 22). Secondly, if the salaried judge that must exercise the power of review considers that it may be appropriate to amend the tribunal's reasons, the proper course is to invite the presiding judge of the tribunal On this case, a fee-paid judge) to prepare them and then apply the review powers fairly and justly, including giving every party to the appeal notice before taking action or at least giving them the option of applying for a set-aside of the review (paragraphs 26-27). Regarding the whole purpose of review, that was 'to allow the First-tier Tribunal to avoid the need for an appeal to the Upper Tribunal in the case of clear errors' and must not be .used in a way that 'subverts the appeal process and bypasses the proper function of the Upper Tribunal' (paragraph 28). The power to give additional reasqns 'is only to be exercised exceptionally and with safeguards' (paragraph 34). The purpose of amended reasons was the same as the original ones (to explain the decision of the tribunaO so as to avoid the need for an appeal to the Upper Tribunal (paragraphs 40-42). Permissible amendments may be, for example, to include something explored at the hearing but missed by oversight in the original reasons, or clarifying an ambiguous or unclear passage; an example of an impermissible amendment would be one that bolstered or supplemented a passage that gave a poot explanation of the tribunal's analysis of a piece of evidence (paragraphs 47-50). A salaried judge considering an amendment of the reasons should consider if there is an error of law in the tribunal decision, then give notice of that and a possible amendment of the 'reasons to the parties to the appeal (paragraphs 52-58).

Summary

The claimant was a child diagnosed with ADHD. She had behavioural problems, lack of understanding of danger, lack of concentration and underdeveloped basic living skills. The decision maker made no award of DLA On appeal, the evidence before the First-tier Tribunal included a psychiatrist's report stating that the claimant was liable to be at risk, a school report and letter saying that her behaviour was very challenging if she did not take her medication and that her condition had worsened due to exam pressures, and a letter from her support worker describing her behaviour at home since the birth of a baby sister as 'very demanding of attention and support'. The tribunal found that the claimant's condition had deteriorated since the date of the decision under appeal and refused the appeal.

In allowing the claimant's further appeal and remitting the case to a new tribunal, Judge Bano held that the tribunal had failed to conduct a sufficiently detailed analysis of the risks to the claimant if she were left unsupervised. He made the following comment, 'As I pointed out in CDLA/3779/2004, children of school age are generally supervised for much of the time, so that their behaviour in those conditions may not provide an accurate indication of the risks to the child if that supervision is not given. In order to answer that question, the tribunal will need to consider the evidence available from all sources, including that of the school and those involved in caring for the child, for the purpose of assessing the risks to the claimant if continual supervision, or supervision when walking out of doors, were not provided' (paragraph 5).

Summary

The claimant was found to be not entitled to HB he had received over a period of several years. He appealed to the First-tier Tribunal. The local authority intended to send a presenting officer. Before the hearing began, the local authority applied for a postponement because the presenting officer was too ill to attend; but as the request was not passed to the tribunal by the Tribunal Service, the hearing proceeded in the local authority's absence, and the appeal was allowed. The local authority applied for, and was granted, a set-aside of the decision; the second First-tier Tribunal dismissed the claimant's appeal. A number of administrative errors, none the fault of the claimant, had arisen during the course of the appeal. The claimant appealed further both against the set-aside and the decision of the second tribunal.

Judge Lane rejected both of the claimant's further appeals. The decision to set aside, made under rule 37 of the Tribunal Procedure (First-tier Tribunal) (Social Entitlement Chamber) Rules, was not erroneous in law. The grounds were whether it was considered to be in the interests of justice to do so, and one or more other conditions, including that a party to the appeal was not present at the hearing, applied. That was clearly satisfied here. The judge rejected arguments that, on the facts of this case, the set-aside request (by fax) was not made in full; the communication result report showed, that it had been (paragraph 27). The judge pointed out that, in any event, the set-aside could have been made on the balance of probabilities and it was not necessary for the application to have bean made before the hearing (paragraphs 30-31). She also rejected an argument that the judge making the set-aside decision had given inadequate reasons for it. One of the features of the set-aside rule was its discretionary nature, and 'the correct approach to whether the judge' s decision was erroneous in law must be to look at whether the decision was objectively fair in light of the generous ambit given to judges when weighing up factors involved in exercising discretion' (paragraph 36). As a decision which did not dispose of the proceedings, the rules did not require full reasons for a set-aside, and although under common law a 'succinct explanation' is required, that should not be used to undermine the relevant provisions. In practice, if the reasons were themselves obvious from the decision itself (as here), then nothing further is required (paragraphs 37-40).

The judge also rejected arguments that the second tribunal's decision was wrong in law. The claimant's arguments included that thp.t tribunal should, as he submitted at the hearing, have reconsidered the set-aside of the first tribunal's decision. Judge Lana rejected that, as it was without authority; the set-aside decision was discretely appealable to the Upper Tribunal, and it was no part of the second tribunal's jurisdiction 'to entertain any application for permission to appeal aspects of the decision-making process' that led up to the second hearing (paragraphs 49-50). More widely, the claimant asked the second tribunal, an hour into the hearing, to deal with a number of points relating to the administrative errors which had occurred but which were beyond the tribunal's jurisdiction, and which in Judge Lane's view did not in any case prejudice the claimant: the tribunal did not err in refusing to deal with them (paragraphs 51-57). The substantive decision of the second tribunal, which concerned the operation of the rules on tenancies on a commercial basis and on 'contrived' tenancies, was not erroneous in law. It had applied the relevant provisions correctly, and to the extent that the claimant was now trying to dispute findings of fact, that was a matter for the First-tier Tribunal which was open to him on the evidence and for which it had given cogent reasons for finding (paragraphs 66-83).

Summary

The claimant had a mental health condition. She failed the work capability assessment (WCA). On appeal, it was argued that the ‘substantial risk’ provision should apply – ie, so that she should be treated as passing the WCA because of ‘substantial risk’ to her health or someone else’s health were she held not to pass the assessment. The First-tier Tribunal dismissed the claimant’s appeal, holding that there would not be such a risk, as under the Equality Act 2010 an employer is required (among other things) to make ‘reasonable adjustments’ in the workplace to accommodate a ‘disabled person’.

Judge Wright allowed the claimant’s further appeal, and remitted to a new tribunal the question of whether the substantial risk provision, at regulation 29(2)(b) of the Employment and Support Allowance Regulations No.794, applied to the claimant. The tribunal had erred in relying on the Equality Act. Specifically, held the judge, ‘the assessment of risk under regulation 29(2)(b) of the ESA regulations does not require or involve the decision maker (be that the Secretary of State’s delegate or the First-tier Tribunal) in making an assessment as to whether employers would owe a duty under the Equality Act 2010 to make reasonable adjustments in respect of the individual claimant whose case falls for decision…’ (paragraph 5).

The judge accepted the Secretary of State’s argument that the analysis of the risk under regulation 29(2)(b) is ‘not an assessment of the application of the EA 2010’ (paragraphs 44–5). The judge’s reasons for that were: (1) the Equality Act 2010 and ESA schemes have different statutory aims and materially different statutory contents; (2) the Equality Act 2010 test ‘sits uneasily’ with the fundamental approach to regulation 29(2)(b) set out by the Court of Appeal in Charlton v SSWP [2009] EWCA Civ 42; R(IB) 2/09; (3) the First-tier Tribunal is ‘ill equipped’ to make proper assessments under the Equality Act 2010; and (4) recourse to the Equality Act 2010 is unnecessary, because regulation 29(2)(b) already allowed for sufficient regard to be paid to actual steps that may reasonably be taken to reduce the risk to health (paragraphs 46– 59). In so deciding, Judge Wright declined to follow, as wrongly decided, the decision of Judge Mark in JB v SSWP [2013] UKUT 518 (AAC), where in an obiter comment the judge said that a tribunal was bound, if relevant to an issue before it, to determine whether a person would be owed a duty by a potential or actual employer under the Equality Act 2010 (paragraph 74).

Comment from CPAG

This decision is properly to be regarded as concerning the relevance of the Equality Act 2010 to the substantial risk provision; for a decision on the issue of the relevance of the Act to ESA appeals and tribunal representation, see DC v Secretary of State.

Summary

The claimant was a Polish national. She came to the UK in December 1998, at the age of 10, with her parents and three siblings. She returned with them to Poland in 2002 but came back in June 2004 (aged 15) when Poland joined the EU. Her mother died and her father became ill. After finishing school the claimant begin registered work but at 17 became pregnant and after a period of unregistered work claimed income support (IS). She was refused on the basis that she did not have the right to reside, a decision eventually upheld in the Upper Tribunal. The claimant's further appeal to the Court of Appeal was based on the argument that the refusal of a right to reside in her case was disproportionate as, by obliging her as someone who had been in the UK for most of her life since the age of 10 to return to Poland, it violated her rights to private and family life under EU law.

The Court of Appeal unanimously dismissed the claimant's appeal. At the time of her claim for IS, she was (as an 'AB' national subject to the workers' registration scheme and was neither working for an authorised employer nor had she completed 12 months' registered unemployment so as to take her outside the requirements of the scheme. The argument that her consequent lack of a right to reside was disproportionate was defeated by the decision of the House of Lords in Zalewska v Department for Social Development [2008] 1 WLR 2602. That was a strongly similar case in which an argument about the proportionality of the workers' registration scheme was made, and which was rejected by the Lords. In the present decision, Lord Justice Laws giving the lead decision said that the decision in Zalewska, 'upheld the proportionality of the scheme as a whole' and could not be distinguished (paragraphs 10-16).

The Court held that there was no breach of the claimant's rights (under Article 7 of the European Charter of Fundamental Rights and Article 8 of the European Convention on Human Rights) to private and family life. Referring to the decision of the Court of Appeal in Kaczmarek [2008] EWCA Civ 1310, Lord Justice Laws noted that there is a distinction between lawful presence in this country and the right to reside here. The claimant in the present case did not have the right to reside under the IS rules, but was lawfully present and (as it happened) no steps were taken to remove her from the country. If such steps had been taken, she would have been entitled to appeal and raise arguments about her rights to private and family life; but 'none of this requires that she be accorded a right of residence... in short, the protection of her fundamental rights did not require that she be accorded such a "right of residence"' (paragraphs 24-26).

Note: at time of writing, it was understood that consideration was being given to an application for permission to appeal to the Supreme Court.

Summary

The claimant suffered from foot and ankle problems, anxiety and depression. On a reapplication of the work capability assessment 0/1/CA), she was scored 0 points. Her appeal to the First-tier Tribunal was rejected. Regarding Activity 1 of the WCA (mobilising), the tribunal held that although the claimant could not walk far and may not be able to use crutches, she did not suffer from upper body problems and could be expected to mobilise by using a wheelchair.

Judge Gamble allowed the claimant's further appeal and remitted the case to a fresh tribunal. The tribunal had erred in applying Activity 1. The test was of the claimant's ability to mobilise including by using a wheelchair or other aid, if such an aid could 'reasonably be used'. The tribunal had not applied this reasonableness test properly. It had only considered her upper body strength. As her representative contended (and as supported by the Secretary of State and accepted by Judge Gamble), the tribunal should have made findings of fact at least about whether there had been any medical advice to use or not to use a wheelchair, whether the claimant would in reality have access to a wheelchair, and whether one would be suitable for her given that she lived in an upstairs tenement flat. The judge thought that 'in almost every case', such considerations or similar ones should apply, although the activity must always be applied on an individual basis (paragraph 9).

Note: the wording of the Activity was amended slightly from 28 January 2013 by SI 2012 No.3O96, but not so as to remove the reasonableness test. However, see also MG v Department for Social Development (ESA).

Summary

In this decision, the Court of Appeal holds that it has jurisdiction (under the Tribunals, Courts and Enforcement Act 2007 – ‘the Act’) to consider an appeal against a decision of the Upper Tribunal refusing to set aside its earlier refusal of permission to appeal. Although the Court had such jurisdiction, that did not mean that the Upper Tribunal’s original refusal to grant permission was also appealable to the Court. 

The claimant, having lost her personal independence payment (PIP) appeal at the First-tier Tribunal, was refused permission to appeal to the Upper Tribunal, first by the First- tier Tribunal and then by the Upper Tribunal. She then asked for that latter refusal to be set aside, under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008, SI 2008 No.2698. The Upper Tribunal refused to set the refusal aside, holding that it was not (as required by regulation 43) ‘in the interests of justice’ to do so and that there had been no ‘procedural irregularity’ in the Upper Tribunal’s refusal to grant permission to appeal. 

In the Court of Appeal, Lord Justice Lewis held, 

‘...I am satisfied that section 13 of the Act confers jurisdiction on the Court of Appeal to consider an appeal against a decision of the Upper Tribunal refusing to set-aside its earlier decision refusing permission to appeal to the Upper Tribunal against a decision of the First- tier Tribunal. Any such appeal would, however, have to be based on arguable grounds that the Upper Tribunal erred in considering that 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.’