Introduction

The case of LM v Advocate General for Scotland ([2024] CSIH 28) presents a significant examination of the procedural boundaries established under the Tribunals, Courts and Enforcement Act 2007. The applicant, LM, contested a decision by the Upper Tribunal (UT) refusing her permission to appeal a previous decision of the First-tier Tribunal (FtT) concerning child maintenance payments determined by the Child Maintenance Service (CMS).

The central issues revolved around whether LM could successfully appeal decisions deemed "excluded decisions" under Section 13(8) of the Act and whether procedural irregularities justified setting aside such decisions. The parties involved included LM, the Advocate General for Scotland representing the Secretary of State for Work and Pensions, and SM, the father of LM’s child, whose financial conduct was scrutinized throughout the proceedings.

Summary of the Judgment

Delivered by Lord Pentland, the Court of Session upheld the refusal to permit LM’s appeal. The court meticulously analyzed the statutory framework governing appeals and determined that LM’s attempts to challenge the FtT’s decision were constrained by provisions categorizing certain tribunal decisions as "excluded decisions."

The judgment highlighted that LM’s grounds for appeal primarily addressed factual disagreements rather than points of law, rendering her appeals ineligible under the relevant statutory provisions. Consequently, the court refused her application, emphasizing the necessity to adhere strictly to the legislative boundaries established to govern tribunal appeals.

Analysis

Precedents Cited

The judgment cited pivotal cases that influence the interpretation of appeal permissions:

• Plescan v Secretary of State for Work and Pensions [2024] 1 WLR 530: This case underscored that Rule 43 applications related to UT decisions are not excluded decisions, thereby allowing such decisions to be appealed to the Court of Session.
• Sarfraz v Disclosure and Barring Service [2015] 1 WLR 4441: Established the principle that decisions on granting permission to appeal are final unless statutory provisions provide otherwise.
• Lane v Esdaile [1891] AC 210: The House of Lords articulated the necessity to prevent "absurdity" in allowing appeals against decisions intended to limit the right of appeal.
• SK v Secretary of State for Work and Pensions (AA) [2016] UKUT 529 (AAC): Clarified that Rule 43 is concerned solely with procedural aspects and does not permit reconsideration of the merits of decisions.

Legal Reasoning

The court’s legal reasoning was anchored in a strict interpretation of the statutory scheme outlined in the Tribunals, Courts and Enforcement Act 2007. Key points included:

• Excluded Decisions: Under Section 13(8)(c), decisions refusing permission to appeal from the FtT to the UT are excluded, meaning they cannot be appealed to the Court of Session.
• Rule 43 Applicability: Rule 43 pertains to procedural irregularities within the UT proceedings, not the substantive merits of the FtT’s decision. LM’s application under Rule 43 failed to demonstrate any procedural errors as defined by the rule.
• Arguable Grounds: The court emphasized that appeals require arguable grounds based on points of law. LM’s challenges were factual disputes regarding the FtT’s assessment of SM’s financial conduct, not legal errors.
• Finality of Permission Decisions: The judgment reinforced the principle that decisions on whether to grant permission to appeal are final, preventing recursive appeals on procedural grounds.

Impact

This judgment reinforces the limitations on direct appeals from the Upper Tribunal to the Court of Session, particularly concerning excluded decisions. It clarifies that:

• Appeals must be grounded in points of law rather than factual disagreements.
• Rule 43 cannot be utilized to challenge substantive decisions of lower tribunals.
• The procedural safeguards are robust, preventing overextension of appeal rights and ensuring judicial efficiency.

Future litigants must meticulously align their appeal grounds with statutory requirements, ensuring that their challenges are rooted in legal errors rather than factual disputes.

Complex Concepts Simplified

Conclusion

The judgment in LM v Advocate General for Scotland serves as a pivotal reference point for understanding the boundaries of appellate permissions under the Tribunals, Courts and Enforcement Act 2007. It underscores the necessity for appellants to formulate appeals based on legal errors rather than factual disagreements and reinforces the finality of decisions concerning permission to appeal.

For practitioners and litigants alike, this case illustrates the critical importance of aligning appeal strategies with statutory frameworks, ensuring that challenges are substantively and procedurally compliant. The court's meticulous adherence to legislative intent preserves the integrity and efficiency of the tribunal system, preventing the exhaustion of judicial resources on appeals lacking legal merit.