McCalla v Secretary of State for Defence

Factual and Procedural Background

This appeal concerns the refusal by the Upper Tribunal (Administrative Appeals Chamber) ("the UT") to set aside its decision refusing permission to appeal from a decision of the First-tier Tribunal (War Pensions and Armed Forces Compensation Chamber) ("the FTT"). The appellant, who served in the army from 2003 to 2004, suffered from bilateral popliteal artery entrapment syndrome ("BPAES") and non-freezing cold injuries. The Secretary of State for Defence rejected his claim under the War Pensions Scheme that BPAES was caused or aggravated by military service. The FTT dismissed the appellant's appeal against this rejection, finding no causal link to service.

The appellant obtained a medical report after the UT refused permission to appeal, and sought to rely on this fresh evidence to set aside the UT's refusal under rule 43 of The Tribunal Procedure (Upper Tribunal) Rules 2008 ("the 2008 Rules"). The UT refused to set aside its decision, concluding no procedural irregularity had occurred. The appellant then appealed that refusal to this court.

Legal Issues Presented

1. Whether the UT erred in law by deciding that no procedural irregularity took place in relation to the application for permission to appeal, thereby not engaging the power under rule 43 to set aside its decision.
2. Whether a document (the medical report obtained after the UT's refusal) can constitute a procedural irregularity under rule 43(2)(b) when it did not exist at the time of the original decision.
3. The proper interpretation and application of rule 43 of the 2008 Rules concerning the setting aside of decisions disposing of proceedings in the UT.

Arguments of the Parties

Appellant's Arguments

• The medical report by the consultant surgeon, obtained after the UT refused permission to appeal, constitutes a "document relating to the proceedings" that was not sent to the UT at an appropriate time, satisfying rule 43(2)(b).
• The definition of "document" in rule 1(2) of the 2008 Rules contains no temporal limitation, so the report need not have existed when the application was made or decided.
• Rule 43(2)(b) should be read alongside rule 15, which allows the UT to admit evidence not available to a previous decision-maker, supporting the admission of fresh evidence.
• Parliament, in enacting the relevant provisions, was aware of principles for admitting fresh evidence on appeal (citing Ladd v Marshall), and thus "document" includes documents created after the original hearing.
• Concerns about potential abuse of rule 43(2)(b) can be controlled by judicial principles restricting fresh evidence and the interests of justice test under rule 43(1)(a).
• The UT erred in applying the interests of justice test by failing to consider that the fresh medical report could have led to a different decision on permission to appeal.
• The appellant relied on case law where fresh evidence led to setting aside decisions, arguing the same principles should apply here.

Respondent's Arguments

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

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the scope and application of rule 43 of the 2008 Rules, which permits the UT to set aside decisions disposing of proceedings only where there has been a procedural irregularity in the UT proceedings and it is in the interests of justice to do so. The court emphasized that rule 43 is not a mechanism to challenge the substantive merits of the UT's refusal of permission to appeal or the underlying FTT decision.

The appellant's reliance on a medical report created after the UT's refusal was held not to engage rule 43(2)(b), which requires that a document relating to the proceedings was not sent to the UT at an appropriate time. "An appropriate time" necessarily means a time before the UT's decision was made. Since the report did not exist at that time, it could not constitute a procedural irregularity.

The court found no procedural error in the UT's handling of the permission to appeal application. The appellant neither indicated to the UT the expectation of a forthcoming report nor requested deferment of the application. The attempt to use the subsequent report to create a procedural irregularity ex post facto was rejected.

The court further clarified that appeals to the UT lie only on points of law, and the appellant's challenge was effectively a factual dispute over causation, which is not permissible under rule 43 or in appeals against the UT's refusal to set aside. The court also noted that the Court of Appeal lacks jurisdiction to hear appeals from UT refusals of permission to appeal from the FTT, reinforcing the limited scope of rule 43.

While acknowledging that fresh evidence may sometimes justify setting aside decisions on procedural grounds, such situations differ from the present case where no procedural irregularity in the UT proceedings was demonstrated.

Holding and Implications

The court DISMISSED the appeal.

The decision confirms that rule 43 of the 2008 Rules is strictly confined to correcting procedural irregularities in the Upper Tribunal's own proceedings and does not permit setting aside decisions based on fresh evidence obtained after a refusal of permission to appeal. This ruling reinforces the finality of UT decisions refusing permission to appeal and clarifies the limited circumstances under which such decisions may be challenged. The appellant's attempt to use rule 43 to relitigate factual findings of the FTT or the UT's refusal was rejected. No new precedent beyond the application of established principles was set. The direct effect is that the appellant's claim for compensation under the War Pensions Scheme remains dismissed, and the procedural safeguards for UT decisions remain intact.