Simon Samuda v Secretary of State for Work and Pensions and Another
| Jurisdiction | England & Wales |
| Judge | Sir Stanley Burnton,Lord Justice Lewison |
| Judgment Date | 02 January 2014 |
| Neutral Citation | [2014] EWCA Civ 1 |
| Date | 02 January 2014 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2013/0235 |
[2014] EWCA Civ 1
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lewison
and
Sir Stanley Burnton
Case No: C3/2013/0235
The Applicant appeared in person
Matthew Barnes (instructed by Treasury Solicitors) for the Secretary of State
Hearing date: 9 December 2013
Introduction
This is an application by Mr Simon Samuda for permission to appeal the decision of the Upper Tribunal (Administrative Appeals Chamber) dated 8 November 2012 refusing to set aside its decision refusing to grant the applicant permission to appeal against the decision of the First-tier Tribunal dated 29 March 2012. Having heard the Applicant's submissions, we decided that his application would be refused for reasons that would be given in writing subsequently. These are my reasons for refusing him permission to appeal.
The facts and procedural history
This application arose from an application by the second respondent for variation of the decision of the Child Maintenance and Enforcement Commission that the applicant was liable to pay nothing per week for their daughter. The First-tier Tribunal (Social Entitlement Chamber) decided that her application for a variation should be allowed by reason of the applicant's assets. The First-tier Tribunal also heard his appeal against the decision of the Commission that he was liable to pay £50 per week for his daughter.
It was common ground before the First-tier Tribunal that the applicant was the owner of a number of residential properties. He had provided to the Commission a list of those properties with figures for their values and the amounts owing on mortgages. He did not appear before the First-tier Tribunal, and did not provide it with evidence to substantiate the figures he had put forward, despite the direction of the Tribunal and its warning, as set out in its reasons for its decision, that in the absence of the information it required it might use the valuations provided by the Commission and would estimate the mortgage debts "using the usual buy-to-let percentage", and that "the Tribunal was likely to make a maintenance assessment using 8% of the net equity". The First-tier Tribunal made findings as to the market values of the properties and of the mortgage debts and decided the appeals before it on the basis of its findings. It determined that on the basis of his assets the second respondent's application for the variation of the applicant's liability for his daughter should be allowed, with the result that he was liable to pay for his daughter the sum of £50 per week.
The applicant applied to the First-tier Tribunal for permission to appeal. The ground of his appeal was principally that the Tribunal had failed to take into account information he had provided. By its decision dated 11 July 2012 the Tribunal refused permission to appeal on the basis that it had been entitled to make the findings to which he objected by reason of his failure to provide the information it had required, and that he had been warned by the Tribunal of the possible consequences of his failure to provide it.
The applicant then applied to the Upper Tribunal for permission to appeal against the decision of the First-tier Tribunal. The Upper Tribunal refused permission to appeal in a determination dated 31 October 2012.
The applicant then made an application to the Upper Tribunal for it to set aside its refusal of permission to appeal. The Upper Tribunal refused to do so in a decision dated 31 October 2012. The applicant then applied to the Upper Tribunal for permission to appeal against that refusal. The Upper Tribunal refused to grant permission to appeal in its decision dated 22 January 2013. Paragraphs 5 to 8 of that decision are as follows:
"5. Given that refusal to set aside determinations are not excluded decision under either section 11(5) or section 13(8) of the Tribunals, Courts and Enforcement Act 2007 (the "TCE Act"), and given the view of the three judge panel of the Upper Tribunal in LS v LB Lambeth (HB) [2010] UKUT 461 (AAC); [2011] AACR, that there is a right of appeal against any decision of the First-tier Tribunal that is not an excluded decision under section 11(5) of the TCE Act, I am prepared to accept for the purposes of this application that in theory at least it may be possible to challenge an Upper Tribunal's refusal to set aside a determination of its own refusing permission to appeal from the First-tier Tribunal, even though the refusal of permission to appeal decision is not itself appealable: per s.13(8)(c) of the TCE Act.
6. However, if the jurisdiction exists the focus of any enquiry as to an error of law (or important point of principle or practice, or other compelling reason) here must be in respect of the Upper Tribunal's refusal to set aside determination, and that as the terms of rule 43 of Tribunal Procedure (Upper Tribunal) Rules 2008 make plain concerns the exercise of a narrow, procedural jurisdiction.
7. I refuse permission to appeal to the Court of Appeal because no error of law in my approach as to whether to set aside my refusal of permission to appeal determination of 31.10.12 is identified by Mr Samuda in his application of for permission to appeal, nor is an error of law otherwise evident. In addition the proposed appeal against the Upper Tribunal's refusal to set aside decision does not raise some important point of principle or practice about the Upper Tribunal's rule 43 setting aside jurisdiction, and there is no other compelling reason for the Court of Appeal to hear this appeal. In the main what Mr Samuda is seeking to do, as he has done before, is to reargue the facts of the first-tier appeal, but he is now too late to do this; and in any event what he has to show is that the Upper Tribunal's refusal to set aside (the refusal of permission to appeal) decision was wrongly arrived at...
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