SK v Secretary of State for Work and Pensions (AA) (Tribunal procedure and practice - set aside applications)

Factual and Procedural Background

The Upper Tribunal (UT) refused the Appellant permission to appeal on the basis that the Appellant's claim of having been self-employed was not presented before the First-tier Tribunal (F-tT) and thus had to be disregarded. The Appellant sought to have the UT's refusal decision set aside, contending that her self-employed status should have been evident to the F-tT from both the calculation of her state pension and her testimony during the hearing. The application to set aside was made pursuant to rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008, which permits the UT to set aside its decisions in limited circumstances related to procedural irregularities.

Legal Issues Presented

1. Whether rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008 permits the UT to set aside its refusal of permission to appeal based on substantive matters not before the F-tT.
2. Whether the Appellant's assertion of self-employment, not raised at the F-tT, constitutes a procedural irregularity under rule 43.
3. The scope and limits of rule 43 concerning procedural irregularities versus judicial errors or substantive challenges.
4. The appropriate method to challenge a UT decision refusing permission to appeal, considering statutory jurisdictional boundaries.

Arguments of the Parties

Appellant's Arguments

• The Appellant argued that her self-employed status should have been apparent to the F-tT based on the state pension credit calculation documents.
• She also contended that she had informed the F-tT during the hearing that she was self-employed following an accident at her previous factory employment.
• The Appellant implied that these facts were procedural irregularities justifying the setting aside of the UT's refusal under rule 43.

Respondent's Arguments

• The Respondent did not make representations on the application to set aside, as the UT judge did not consider it necessary.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Tager v Commissioners for Her Majesty's Revenue and Customs [2015] UKUT 663 (TCC)	Rule 43 applies only to procedural irregularities, not judicial errors or substantive challenges.	The court relied on this precedent to confirm that the Appellant's substantive challenge regarding self-employment was outside the scope of rule 43.
VK v Commissioners for Her Majesty's Revenue and Customs [2016] UKUT 331 (AAC); [2017] AACR 3	Uniform interpretation of procedural rules across different Chambers of the tribunal.	Supported the principle that rule 43 must be interpreted consistently regardless of jurisdictional context.
R (LR) v First-tier Tribunal (Health, Education and Social Care Chamber) and Hertfordshire County Council (SEN) [2012] UKUT 213 (AAC), [2013] AACR 26	Clarification of the meaning of 'procedural irregularity' and limits of set-aside powers in tribunal proceedings.	Reinforced that procedural irregularities refer to procedural errors, not substantive decision errors.
Trimble v Supertravel Ltd [1982] ICR 440	Importance of preserving the scope of review powers and appeals; procedural shortcomings versus substantive errors.	Used to emphasize that review powers correct procedural errors, not substantive judicial errors after parties had a fair hearing.
Compagnie Noga D'Importation et D'Exportation SA v Abacha [2001] 3 All ER 513	Preservation of proper scope for appeals and jurisdictional boundaries.	Supported the principle that challenges to decisions refusing permission to appeal must respect jurisdictional limits.
R (RB) v First-tier Tribunal (Review) [2010] UKUT 160 (AAC); [2010] AACR 41	Emphasis on correct application of procedural rules and limits on review powers.	Supported consistent application of procedural rules and the limited scope of set-aside powers.
R(U) 3/89 (Social Security Commissioners)	Interpretation of enabling powers as limited to procedural irregularities.	Confirmed that the enabling provision for rule 43 restricts its scope to procedural matters only.

Court's Reasoning and Analysis

The court began by examining the statutory framework governing the UT's power to set aside its own decisions, focusing on rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008. This rule confers a limited, discretionary jurisdiction to set aside decisions only where it is in the interests of justice and one or more specified procedural irregularities have occurred.

The court found no evidence that any of the procedural irregularity conditions under rule 43(2) were satisfied. In particular, there was no indication in the state pension credit calculation documents or the F-tT hearing records that the Appellant had claimed self-employment. The national insurance record also contained no contributions related to self-employment.

The Appellant's contention that the UT should consider her self-employment status was deemed a substantive challenge to the UT's merits-based decision, which rule 43 does not permit. The rule is strictly confined to procedural matters and does not allow for reconsideration of judicial errors or substantive issues not raised at the F-tT.

The court further emphasized the importance of maintaining jurisdictional boundaries, noting that the only proper route to challenge a UT refusal of permission to appeal is by judicial review, not by setting aside under rule 43. Appeals to the Court of Appeal are expressly excluded by statute.

The court relied on established precedents interpreting similar procedural rules to reinforce that rule 43 is not an avenue for substantive appeals or judicial error correction but solely for procedural irregularities affecting the fairness or conduct of the hearing or application process.

The court also clarified that procedural irregularities occurring at the F-tT level cannot be addressed by the UT under rule 43, which governs only the UT's own proceedings. The F-tT has its own equivalent powers to address procedural issues.

Holding and Implications

The Upper Tribunal REFUSED the Appellant's application to set aside its refusal of permission to appeal.

The direct effect is that the UT's original decision refusing permission to appeal remains in force. The decision clarifies and reinforces the limited scope of rule 43 as a procedural tool, not a mechanism for challenging substantive errors or decisions on the merits. No new precedent was set beyond the confirmation of established principles regarding procedural jurisdiction and the appropriate channels for challenging UT decisions.