Appeals to the Upper Tribunal

Document Cited authorities (16) Cited in Related
AuthorAndrew Bano
Pages265-278

Chapter 32


Appeals to the Upper Tribunal

RIGHT OF APPEAL TO THE UPPER TRIBUNAL
32.1 As explained in paras 24.8 and 24.9, appeals lie to the Upper Tribunal on a point of law from the First-tier Tribunal in England and Wales, from the Pensions Appeal Tribunal (Scotland) and, in assessment cases only, the Pensions Appeal Tribunal (Northern Ireland). Appeals from the Pensions Appeal Tribunal (Northern Ireland) in other cases lie to the Pensions Appeal Commissioners in Northern Ireland and are considered in Chapter 33. Appeals to the Upper Tribunal are usually dealt with by a single judge, but paragraph 3 of the Senior President’s Practice Statement on the composition of tribunals in the Administrative Appeals Chamber1provides for a case to be decided by a panel of two or more judges if the Senior President or the Chamber President considers that it involves a question of law of special difficulty or an important point of principle or practice, or that it is otherwise appropriate.

32.2 In LS v London Borough of Lambeth (HB),2a three-judge panel of the Upper Tribunal held that there is a right of appeal against any decision of the First-tier Tribunal, except for an excluded decision, so that an appeal can be brought against a decision made by a First-tier Tribunal judge in the exercise of the case management powers in rule 5 of the England and Wales Procedure Rules. It may often be appropriate to wait until a case has been finally decided before bringing an appeal against such decisions because an unfair interlocutory decision may render the subsequent substantive decision wrong in law, so that the substantive decision can be challenged when it is made,3but there is now power

1Practice Statement: Composition of Tribunals in relation to matters that fall to be decided by the

Administrative Appeals Chamber of the Upper Tribunal on or after 26 March 2014, Sir Jeremy Sullivan, 26 March 2014.

2[2010] UKUT 461 (AAC).

3R v Medical Appeal Tribunal (Midland Region) ex parte Carrarini [1966] 1 WLR 883.

266 War Pensions and Armed Forces Compensation – Law and Practice

to extend the time for bringing an appeal against an interlocutory decision until the substantive hearing has taken place.4

POINT OF LAW
32.3 In R (Iran) v Secretary of State for the Home Department,5the Court of Appeal summarised (at [9]) the points of law which are most likely to arise in practice as follows:

i) Making perverse or irrational findings on a matter or matters that were material to the outcome (‘material matters’);

ii) Failing to give reasons or any adequate reasons for findings on material matters;

iii) Failing to take into account and/or resolve conflicts of fact or opinion on material matters;

iv) Giving weight to immaterial matters;
v) Making a material misdirection of law on any material matter;
vi) Committing or permitting a procedural or other irregularity capable of making a material difference to the outcome or the fairness of the proceedings;
vii) Making a mistake as to a material fact which could be established by objective and uncontentious evidence, where the appellant and/or his advisers were not responsible for the mistake, and where unfairness resulted from the fact that a mistake was made.

32.4 The most common reason for allowing appeals against tribunal decisions is inadequacy of reasons. Statements of reasons in war pensions and armed forces cases are often brief because they are usually given in the presence of the parties at the end of a hearing, but the adequacy of reasons depends on the context and complexity of a case, rather than on the length of the statement.6The requirements for an adequate statement of reasons were summarised (in a planning context) by Lord Brown of Eaton-under-Heywood in South Bucks District Council v Porter (No 2)7as follows (at [36]):

The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision.

4See n 10.

5[2005] EWCA Civ 982, [2005] INLR 633.

6See e.g. CAF/5182/ 2014, unreported, in which Judge Levenson upheld the decision of a tribunal consisting of four sentences.

7[2004] UKHL 33, [2004] 1 WLR 1953.

The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced.

APPLYING TO THE FIRST-TIER OR PENSIONS APPEAL TRIBUNAL FOR PERMISSION TO APPEAL
32.5 An application for permission to appeal8to the Upper Tribunal is made in the first instance to the First-tier Tribunal (in England and Wales) or to the Pensions Appeal Tribunal (in Scotland and Northern Ireland). If permission is refused or the application is not admitted, a new application can be made to the Upper Tribunal but an application for permission must always be made first to the Pensions Appeal Tribunal in Scotland or Northern Ireland or to the First-tier Tribunal in England and Wales.9

England and Wales
32.6 Under rule 36 of the England and Wales Procedure Rules, an application for permission to appeal must be in writing and must be made no later than 42 days after the latest of the following dates:

(i) the sending of the decision notice;10

(ii) the sending of written reasons for the decision in the case of a decision which disposes of all issues in the proceedings (a final decision) or a decision on a preliminary issue in a case where the tribunal has directed an issue to be dealt with as a preliminary issue under rule 5(3)(e);

8‘Permission to appeal’ is called ‘leave to appeal’ in Scotland and Northern Ireland, but is referred to throughout this chapter as ‘permission to appeal’.

9Upper Tribunal Procedure Rules, r 21(2).

10Applicable if permission to appeal is sought against a decision which does not require the giving of reasons, e.g. a case management decision. In such cases the tribunal has power under England and Wales Procedure Rules, r 36(2A) to direct that the time for applying for permission to appeal should run from the date of the final decision.

268 War Pensions and Armed Forces Compensation – Law and Practice

(iii) notification of amended reasons...

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