Court of Appeal Jurisdiction Over Upper Tribunal’s Refusal to Set Aside Permission to Appeal in Plescan v Secretary of State for Work and Pensions ([2023] EWCA Civ 870)

Introduction

The case of Plescan v Secretary of State for Work and Pensions ([2023] EWCA Civ 870) addresses a critical question regarding the appellate jurisdiction of the Court of Appeal over certain decisions made by the Upper Tribunal. Specifically, it examines whether the Court of Appeal can hear an appeal against a decision of the Upper Tribunal that refuses to set aside its prior decision denying permission to appeal to the Upper Tribunal from a First-tier Tribunal decision. This commentary provides an in-depth analysis of the judgment, exploring its background, legal reasoning, cited precedents, and its broader implications for the judicial landscape.

Summary of the Judgment

The appellant, Ms. Mirela Plescan, initially had her claim for a Personal Independence Payment (PIP) denied by the Secretary of State for Work and Pensions. After partial success on appeal to the First-tier Tribunal, she sought further appeals to the Upper Tribunal. When her applications for permission to appeal and to set aside previous decisions were refused by the Upper Tribunal, she sought to escalate the matter to the Court of Appeal. The central issue was whether the Court of Appeal possessed the jurisdiction to hear appeals against the Upper Tribunal’s refusal to set aside its decision denying permission to appeal.

The Court of Appeal ultimately held that it does have jurisdiction to hear such appeals, provided there are arguable grounds that the Upper Tribunal erred in its decision-making process. This decision clarifies the scope of appellate review available to appellants within the tribunal system, particularly in cases involving PIP determinations.

Analysis

Precedents Cited

The judgment references several key precedents to underpin its decision. Notably, it discusses Samuda v Secretary of State for Work and Pensions [2014] EWCA Civ 1 and DJ (Pakistan) v Secretary of State for the Home Department [2022] EWCA Civ 1057. In Samuda, the Court of Appeal confirmed its lack of jurisdiction over certain Upper Tribunal decisions, particularly those categorized as "excluded decisions" under the Appeals (Excluded Decisions) Order 2009.

However, in distinguishing the present case from DJ (Pakistan), the court highlighted differences in the nature of the decisions and the applicable statutory instruments. Unlike DJ (Pakistan), the current case does not fall under any specific excluded categories defined by the existing Orders, thereby necessitating a separate consideration of the Court of Appeal’s jurisdiction.

Additionally, the judgment draws on interpretations of Rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 and relevant sections of the Tribunals, Courts and Enforcement Act 2007 to delineate the boundaries of appellate review.

Legal Reasoning

The Court of Appeal's reasoning centers on the statutory language and the separation of powers between different types of judicial reviews and appeals. It emphasizes that Section 13 of the Tribunals, Courts and Enforcement Act 2007 confers a general right of appeal to the Court of Appeal on points of law arising from Upper Tribunal decisions, excluding those specifically categorized under Section 13(8).

The court reasoned that the decision to refuse to set aside a refusal of permission to appeal does not fall within the excluded categories outlined in Section 13(8). As such, Ms. Plescan retains the right to appeal this specific decision to the Court of Appeal. The court further clarified that applications to set aside decisions under Rule 43 are distinct from applications for permission to appeal under Section 11(4)(b), and thus, they do not merge or become part of each other’s decision-making processes.

The judgment also addressed arguments presented by the appellant’s advocate, Mr. Colin Thomann, who contended that such decisions should be regarded as excluded based on precedent and statutory interpretation. The court systematically dismantled these arguments by differentiating the procedural context and highlighting the absence of specific exclusions applicable to the current scenario.

Impact

The ruling in Plescan v Secretary of State for Work and Pensions significantly impacts the appellate framework within the tribunal system. By affirming the Court of Appeal's jurisdiction in this context, the judgment provides appellants with an additional avenue to challenge Upper Tribunal decisions, particularly those involving procedural correctness in handling applications for permission to appeal.

This decision enhances the supervisory role of the Court of Appeal over the tribunal system, ensuring that procedural fairness and adherence to legal standards are upheld. It may lead to increased scrutiny of Upper Tribunal procedures and potentially influence how tribunals handle applications for setting aside decisions in the future.

Furthermore, the judgment may prompt legislative scrutiny regarding the categorization of excluded decisions, potentially leading to more precise statutory definitions to prevent jurisdictional ambiguities.

Complex Concepts Simplified

Jurisdiction

Jurisdiction refers to the authority granted to a court to hear and decide cases. In this context, it determines whether the Court of Appeal has the power to hear an appeal against the Upper Tribunal’s decision.

Excluded Decisions

Excluded decisions are specific types of decisions that are not subject to appeal to higher courts as defined by statutory provisions. These exclusions are detailed in Section 13(8) of the Tribunals, Courts and Enforcement Act 2007.

Set Aside

To set aside a decision means to annul or invalidate it, effectively reversing the decision and potentially reopening the case or requiring a new decision to be made.

Procedural Irregularity

A procedural irregularity occurs when there is a deviation from established legal procedures, which may affect the fairness or validity of the decision-making process.

Conclusion

The judgment in Plescan v Secretary of State for Work and Pensions establishes that the Court of Appeal possesses the jurisdiction to hear appeals against the Upper Tribunal’s refusals to set aside decisions denying permission to appeal from the First-tier Tribunal. This decision reinforces the appellate oversight mechanisms within the UK tribunal system, ensuring that procedural propriety is maintained. It underscores the Court of Appeal’s role in safeguarding the rights of appellants to seek redress when procedural errors are alleged, thereby contributing to a more robust and fair judicial process.

Moving forward, practitioners and appellants must be cognizant of the avenues available for challenging Upper Tribunal decisions, particularly in cases where procedural correctness is in question. The decision also highlights the importance of clear statutory definitions to delineate the scope of appellate jurisdiction, potentially guiding future legislative amendments and judicial interpretations.