Application for leave to appeal by LM against the Advocate General for Scotland (Court of Session)

Factual and Procedural Background

This opinion concerns an application for permission to appeal a decision of the Upper Tribunal (UT) to the Court of Session under section 13 of the Tribunals, Courts and Enforcement Act 2007. The Applicant, referred to as LM, disputes the amount of child maintenance fixed by the Child Maintenance Service (CMS) for the benefit of her child, A, whose father is SM. SM, a police officer and business owner, was ordered by CMS in 2019 to pay £79.37 per week in child maintenance. LM challenged this amount, alleging that SM manipulated his business accounts to reduce his apparent income and thus the maintenance calculation.

LM sought mandatory reconsideration from CMS, which upheld the original decision. She then appealed to the First-tier Tribunal (FtT), which held a hearing in May 2021 and upheld the CMS decision despite SM’s inability to fully explain his financial affairs. LM appealed to the UT, which in June 2022 allowed the appeal, finding that the FtT had erred in law by failing to investigate SM’s evidence adequately and ordered a rehearing before a differently constituted tribunal.

At the rehearing, SM and his accountant provided detailed and reliable explanations of his finances. The FtT examined bank statements and accounting practices, finding no evidence of dishonesty or deliberate concealment of income, and again refused LM’s appeal in May 2023 ("the Second FtT Decision").

LM sought permission to appeal the Second FtT Decision; the FtT refused permission, and the UT also refused permission in December 2023, holding that LM’s grounds were factual disagreements and an unsubstantiated allegation of bias, not arguable points of law.

LM then applied under Rule 43 of the Tribunal Procedure (Upper Tribunal) Rules 2008, alleging procedural irregularities and bias by the tribunal. The UT refused to set aside its refusal of permission to appeal, holding that LM’s allegations did not satisfy the procedural conditions required under Rule 43 and related to the FtT proceedings rather than the UT’s own procedure. LM’s subsequent applications and appeals to the UT and Court of Session for permission to appeal were refused.

Legal Issues Presented

The opinion addresses a procedural matter and does not frame distinct legal issues.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
SK v Secretary of State for Work and Pensions (AA) [2016] UKUT 529 (AAC)	Rule 43 concerns procedural handling of UT decisions, not merits of decisions.	The court cited this to explain that Rule 43 does not permit challenging the UT's substantive decisions but only procedural irregularities.
Plescan v Secretary of State for Work and Pensions [2024] 1 WLR 530	Clarifies that appeals against Rule 43 decisions refusing to set aside UT decisions are not excluded under s13(8) and the test is whether the appeal is arguable.	The court relied on this to confirm the competence of the appeal under Rule 43 but found the grounds unarguable.
Sarfraz v Disclosure and Barring Service [2015] 1 WLR 4441	Finality of decisions on permission to appeal absent express statutory provisions allowing appeal.	Used to support the principle that refusal of permission to appeal a Rule 43 decision is generally final.
Kemper Reinsurance Co v Minister of Finance & Ors [2000] 1 AC 1	Supports finality of permission to appeal decisions to avoid undermining statutory appeal restrictions.	Quoted to reinforce the finality principle in permission decisions.
Lane v Esdaile [1891] AC 210	Early authority on finality of permission to appeal decisions.	Referenced as foundational authority for finality of permission decisions.

Court's Reasoning and Analysis

The court began by acknowledging the detailed factual allegations and criticisms raised by LM against SM and the FtT’s findings, accepting them for the purpose of the application but without deciding their truth. The court then analysed the statutory appeal framework under the Tribunals, Courts and Enforcement Act 2007. It emphasised that appeals from the FtT to the UT are limited to points of law and that the UT’s refusal to grant permission to appeal is an excluded decision under section 13(8)(c), not subject to appeal to the Court of Session.

The court considered the Rule 43 procedure, which allows the UT to set aside its own decisions for procedural irregularities, but stressed that this rule applies only to UT proceedings, not to decisions of the FtT. LM’s complaints were directed at the FtT’s factual findings and credibility assessments, which do not constitute procedural irregularities within the UT’s remit under Rule 43.

The court further noted that even if an appeal against the UT’s refusal to set aside under Rule 43 is competent, the grounds must be arguable and relate to procedural errors or interests of justice. LM’s grounds, focusing on factual disputes and alleged bias at the FtT, failed to meet this threshold. The court also discussed the finality of permission decisions, citing authorities that such refusals are generally final and not subject to further appeal.

Ultimately, the court found that LM’s application sought to challenge the factual conclusions of the FtT rather than identify a legal or procedural error by the UT, and therefore the application was incompetent and unarguable.

Holding and Implications

The court’s final decision was to REFUSE PERMISSION TO APPEAL.

This decision means that the Applicant cannot appeal the Upper Tribunal’s refusal to grant permission to appeal the First-tier Tribunal’s decision. The statutory scheme restricts appeals on factual grounds in this context, and the court affirmed that the appropriate route for challenging such findings is limited to points of law and procedural irregularities within the UT. No new precedent was established; the ruling reaffirms the existing statutory appeal framework and the finality of permission decisions under the Tribunals, Courts and Enforcement Act 2007.