JG v The Secretary of State for Work and Pensions

A First-tier Tribunal may set aside a final decision disposing of proceedings under rule 37 of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 where the interests of justice and one of the specified procedural conditions are satisfied.

Once set aside, the final decision ceases to exist and the proceedings remain live. Rule 37 cannot be used to set aside a decision which merely removes an earlier final decision. The general case-management powers in rule 5 permit directions about the conduct or disposal of proceedings, including setting aside directions, but do not confer a power to set aside decisions. An unauthorised decision has no force or effect.

JG appealed to the First-tier Tribunal against a universal credit sanction imposed by the Secretary of State for Work and Pensions. The First-tier Tribunal dismissed the appeal on the papers on 24 January 2024.

On 20 February 2024, a salaried judge set that decision aside under rule 37 and directed an oral hearing. On 13 March 2024, the directions were amended so that the appeal would be decided on the papers. On 2 May 2024, another salaried judge purported to set aside the 20 February decision and restore the original dismissal. The First-tier Tribunal later provided reasons and refused permission to appeal.

The issue before the Upper Tribunal was whether the First-tier Tribunal had power to set aside its 20 February decision and whether there was a final decision capable of being considered on appeal.

1. Permission and disposal. JG’s application for permission to appeal was not admitted because there was no final First-tier Tribunal decision for the Upper Tribunal to consider. The appeal was returned to the First-tier Tribunal for a final decision.
2. First set-aside decision. The decision of 24 January 2024 disposed of the proceedings. The conditions in rule 37(2)(c) of the Tribunal Procedure (First-tier Tribunal) (SEC) Rules 2008 and the interests-of-justice requirement in rule 37(1) were satisfied. The First-tier Tribunal therefore had power to set that decision aside on 20 February 2024.
3. Setting aside the final decision meant that it ceased to exist. The appeal became live again and required determination afresh by the First-tier Tribunal.
4. Second set-aside decision. The decision of 20 February 2024 did not dispose of proceedings. It removed the previous final decision and left the appeal pending. It therefore did not fall within rule 37(1), and rule 37 could not be used to set it aside.
5. The case-management powers in rule 5 allowed the First-tier Tribunal to regulate procedure and to amend, suspend or set aside directions. They did not specifically authorise setting aside an earlier decision. The distinction between a direction and a decision was material. Rule 5(3) did not enlarge those powers.
6. The decision of 2 May 2024 was made without power under the Rules and had no force or effect. The 20 February decision, as amended on 13 March, continued to apply. The appeal remained undecided and was remitted to the First-tier Tribunal.

• First-tier Tribunal: Appeal dismissed on the papers on 24 January 2024.
• First-tier Tribunal: Decision set aside under rule 37 on 20 February 2024; directions later amended on 13 March 2024.
• First-tier Tribunal: Purported decision of 2 May 2024 setting aside the 20 February decision held to be without legal effect. Permission to appeal was refused on 10 June 2024.
• Upper Tribunal: Application for permission to appeal not admitted because no final decision existed; matter returned to the First-tier Tribunal for determination.