Mirela Plescan v Secretary of State for Work and Pensions

A refusal by the Upper Tribunal to set aside, under rule 43, an earlier refusal of permission to appeal is itself appealable to the Court of Appeal under section 13 of the Tribunals, Courts and Enforcement Act 2007. It is a separate decision and is not among the excluded decisions specified by section 13(8).

The appeal must concern the Upper Tribunal’s application of rule 43. It may challenge an error concerning the interests of justice or a procedural irregularity in the Upper Tribunal proceedings. It cannot challenge the underlying refusal of permission, the First-tier Tribunal’s findings or the procedure before the First-tier Tribunal.

The appellant received a partial award of personal independence payment from the First-tier Tribunal but was refused the mobility component. The First-tier Tribunal and subsequently the Upper Tribunal refused her permission to appeal. The Upper Tribunal then refused her application under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 to set aside its refusal.

The appellant sought permission to appeal from that rule 43 decision. The Court of Appeal appointed an advocate to the Court and determined as a preliminary issue whether section 13 of the Tribunals, Courts and Enforcement Act 2007 gave it jurisdiction to entertain such an appeal.

1. Jurisdiction established. The Court of Appeal had jurisdiction under section 13 of the Tribunals, Courts and Enforcement Act 2007 to consider an appeal against the Upper Tribunal’s refusal to set aside its earlier refusal of permission to appeal. A rule 43 set-aside decision is not included among the excluded decisions defined by section 13(8). The court therefore determined the jurisdictional issue in the appellant’s favour.

2. An application under rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 is distinct from an application for permission to appeal under section 11(4)(b) of the 2007 Act. The two applications invoke separate statutory powers and involve separate processes. A rule 43 decision consequently does not become an excluded permission decision merely because the decision sought to be set aside refused permission to appeal.

3. The reasoning in DJ (Pakistan) v Secretary of State for the Home Department [2022] EWCA Civ 1057 did not govern the present situation. There, the set-aside decision concerned a substantive Upper Tribunal appeal and was excluded by a statutory instrument applicable to the relevant immigration proceedings. The set-aside decision could also merge with an appealable substantive determination. Here, the underlying refusal of permission was itself unappealable, and there was no equivalent statutory instrument excluding the rule 43 decision.

4. Rule 43 applies to a decision disposing of an application for permission to appeal. Its power is limited and requires both the interests of justice and a specified procedural irregularity in the Upper Tribunal’s own proceedings. It does not provide another means of challenging the merits of the refusal of permission or the First-tier Tribunal’s decision.

5. The prospective appeal could therefore concern only an arguable error in the Upper Tribunal’s assessment of the interests of justice or procedural irregularity under rule 43. It could not challenge the refusal of permission, the First-tier Tribunal’s findings or procedure, or seek reconsideration of the substantive benefit claim. The permission application was to be considered by a Court of Appeal judge, and the appellant was allowed 14 days to make further representations and any application to rely on further evidence.

Snowden and Baker LJJ agreed with Lewis LJ.

1. Court of Appeal (Civil Division): In [2023] EWCA Civ 870, held that it had jurisdiction to entertain an appeal from the Upper Tribunal’s refusal of the rule 43 set-aside application. The permission application was left for determination by a Court of Appeal judge.
2. Upper Tribunal: On 31 August 2022, refused to set aside its earlier refusal of permission. It found that the application concerned either procedure before the First-tier Tribunal or the merits of its decision, rather than a qualifying procedural irregularity before the Upper Tribunal.
3. Upper Tribunal: On 9 August 2022, refused permission to appeal from the First-tier Tribunal, finding no material error of law.
4. First-tier Tribunal: On 18 January 2022, allowed the benefit appeal in part by awarding the daily living component of personal independence payment, but declined to award the mobility component. It refused permission to appeal on 19 May 2022.