Samuda v Secretary of State for Work and Pensions & Anor

The Upper Tribunal cannot review its refusal of permission to appeal from the First-tier Tribunal. Such a refusal is an excluded decision under section 13(8)(c) of the Tribunals, Courts and Enforcement Act 2007 and therefore falls outside the review power conferred by section 10(1).

A purported decision not to review that refusal is itself excluded by section 13(8)(d)(i). Consequently, no appeal lies from it to the Court of Appeal, and the Court of Appeal cannot grant permission for such an appeal. The available remedy against the Upper Tribunal's refusal of permission is judicial review, subject to the applicable restrictions.

The First-tier Tribunal varied a child maintenance assessment after finding that the applicant's residential property assets justified liability of £50 per week. It had warned him that, if he failed to provide the required financial evidence, it might estimate property values, mortgage debts and net equity. He did not attend or provide substantiating evidence.

The First-tier Tribunal and then the Upper Tribunal refused permission to appeal. The Upper Tribunal also refused to set aside its refusal and declined permission to appeal from that decision. The applicant applied directly to the Court of Appeal.

The central question was whether the Upper Tribunal had jurisdiction to review its refusal of permission to appeal and whether its refusal to conduct that review could itself be appealed to the Court of Appeal.

1. Application for permission to appeal refused. A refusal by the Upper Tribunal of permission to appeal from the First-tier Tribunal is an excluded decision under section 13(8)(c) of the Tribunals, Courts and Enforcement Act 2007. Section 10(1) excludes such a decision from the Upper Tribunal's statutory review power. The Upper Tribunal therefore had no jurisdiction to review its refusal of permission.

2. A purported decision by the Upper Tribunal refusing to review an earlier refusal of permission is independently an excluded decision under section 13(8)(d)(i). Section 13(1) confers a right of appeal to the relevant appellate court only from a decision of the Upper Tribunal which is not excluded. No appeal therefore lies to the Court of Appeal from the refusal to review, and the Court of Appeal cannot grant permission for such an appeal.

3. The only remedy available to a person aggrieved by the Upper Tribunal's refusal of permission to appeal is judicial review. That remedy remains subject to the restrictions laid down by the Supreme Court in Cart.

4. Lewison LJ agreed with Sir Stanley Burnton's reasons. Because the court had determined a question of jurisdiction, it gave permission for the judgment to be cited under paragraph 6.1 of the Practice Direction (Citation of Authorities), notwithstanding that the proceeding concerned only an application for permission to appeal.

1. Court of Appeal (Civil Division): Refused permission to appeal because the Upper Tribunal lacked jurisdiction to review its refusal of permission and no appeal lay from the refusal to review: [2014] EWCA Civ 1.

2. Upper Tribunal (Administrative Appeals Chamber): Refused permission to appeal from its refusal to set aside the earlier permission decision. It had previously refused to set aside its refusal of permission to appeal from the First-tier Tribunal.

3. First-tier Tribunal (Social Entitlement Chamber): Allowed the application to vary the child maintenance assessment by reason of the applicant's assets, resulting in liability of £50 per week. It subsequently refused permission to appeal.