SC v Secretary of State for Work and Pensions

After the maximum statutory extension period has expired, an appeal may be admitted only in exceptional circumstances where refusal would impair the very essence of the right of appeal. Whether the appellant has done everything reasonably possible to appeal in time may be relevant, but is not an independent requirement.

Where a tribunal has power to determine proceedings without a hearing, it must consider whether doing so is fair, just and appropriate, having regard to the nature of the case, fairness to the parties, participation and the wider interests of justice. The fact that the papers permit a decision, or that a hearing may not change the result, is insufficient.

The appellant appealed against the First-tier Tribunal’s decision of 14 November 2024 striking out her Personal Independence Payment appeal as out of time. The mandatory reconsideration decision was dated 21 April 2023, and the appeal was received on 3 June 2024, outside the maximum extension permitted by the applicable procedure rules.

The First-tier Tribunal decided the matter on the papers. It found that the appellant had not shown exceptional circumstances impairing the essence of her right of appeal. The issues before the Upper Tribunal were whether the First-tier Tribunal had applied the correct approach to extending time and whether it was entitled to proceed without an oral hearing.

1. Appeal allowed. The First-tier Tribunal’s decision involved errors of law. It was set aside and the case was remitted to a fresh First-tier Tribunal.
2. The First-tier Tribunal had correctly understood the principles governing appeals lodged after the maximum 12-month extension period. Under Adesina, Rakoczy and Stuewe, an extension is available only in exceptional circumstances where refusal would impair the very essence of the right of appeal. The appellant’s efforts to appeal in time may be relevant, but they are not an independent jurisdictional requirement. Any extension must go no further than necessary to secure compliance with Article 6.
3. The First-tier Tribunal made a perverse misunderstanding of the evidence by treating the appellant as having contacted the Department for Work and Pensions on 29 April 2024. The evidence showed three earlier calls, with the last before the appellant was told that her adviser had died. The remaining findings were insufficient to support the conclusion that refusal of an extension would not impair the essence of the right of appeal.
4. Although rule 27(3) permits proceedings to be disposed of without a hearing when striking out under rule 8, that discretion must be exercised lawfully and subject to the overriding objective. The tribunal must ask whether it is fair, just and appropriate to proceed without a hearing. Relevant considerations include the nature of the issues and need for oral evidence, fairness to the parties, the opportunity to answer adverse concerns, participation and the wider interests of justice.
5. Here, the papers did not resolve whether the delay was wholly attributable to advisers on whom the appellant had reasonably relied. The appellant also needed an opportunity to address concerns about incomplete written evidence, and had indicated willingness to attend a hearing. The First-tier Tribunal wrongly asked whether it could make findings from the papers and whether a hearing would affect the outcome, rather than whether proceeding without a hearing would be fair or necessary in the interests of justice.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal against the First-tier Tribunal’s decision and remitted the case for reconsideration by a fresh tribunal.
• First-tier Tribunal (Social Entitlement Chamber): on 14 November 2024 struck out the appeal as out of time and proceeded on the papers.