THE UPPER TRIBUNAL		Case No: CSDLA/574/08

ADMINISTRATIVE APPEALS CHAMBER

Appellant: 

Respondent: 

DECISION OF THE UPPER TRIBUNAL

A J GAMBLE
JUDGE OF THE UPPER TRIBUNAL

ON APPEAL FROM: Appeal tribunal

Tribunal Case No: 084/08/00571
Tribunal Venue: Ayr
Hearing Date: 2 October 2008

THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

DECISION OF THE UPPER TRIBUNAL JUDGE

The claimant’s appeal against the Decision of the Ayr appeal tribunal of 2 October 2008 is dismissed.  

The Upper Tribunal has no jurisdiction over this appeal. 

The case is referred to the First tier Tribunal (Social Entitlement Chamber) for that tribunal to consider the claimant’s application for permission to appeal to the Upper Tribunal, under Rule 39 of the Tribunal Procedure (First tier tribunal) (Social Entitlement Chamber) Rules 2008.

REASONS FOR DECISION

1.	On 2 October 2008, the Ayr appeal tribunal dismissed the claimant’s appeal against a decision maker’s decision of 15 June 2008, refusing to make any award of disability living allowance to her from 18 March 2008.   

2.	Thereafter the claimant sought a statement of the tribunal’s reasons which was sent to her on 24 October 2008, see Document 112, along with a covering letter, Document 113. 

3.	The claimant returned Document 113 to the Tribunals Service, on 7 November 2008, with appended handwritten comments..   These began with the sentence, “I wish to appeal”.  

4.	On 7 November 2008, a tribunal clerk referred Document 113 to the tribunal judge who had chaired the tribunal of 2 October 2008 for guidance.  See the top section of Document of 115, also reproduced as Document 130.  The judge responded to that interlocutory request, on 13 November 2008, in these terms; “Treat as an application for leave to appeal to the Upper tier tribunal”.  See the lower part of Document 115.  In my judgement, he was, by that direction, instructing the clerk to prepare the appropriate forms and then to refer them to him along with the tribunal file for him to consider the claimant’s application for permission to appeal to the Upper Tribunal.  That direction was never carried out. 

5.	At this point, the claimant became the victim of an official error.  The clerk misunderstood the judge’s directions.  Instead of referring the case back to the judge, in the way delineated in paragraph 4 above, he issued Document 129.  That letter inaccurately records that permission to appeal to the Upper Tribunal had been granted by a First tier tribunal judge.  Such permission had not been granted.  The claimant’s application for permission to appeal to the Upper Tribunal had not even been considered by the First tier tribunal under Regulation 39 of the Tribunal Procedure (First tier tribunal) (Social Entitlement Chamber) Rules 2008.  

6.	Thereafter the case proceeded before the Upper Tribunal.  For example, a Notice of Appeal was lodged, written submissions were made on behalf of the Secretary of State and the claimant and a request for an oral hearing was put forward by the claimant’s representative and refused by the registrar. Only when preparing to write my decision on the merits of the case, did I notice the circumstances described in paragraphs 4-5 above. I then concluded that no permission to appeal to the Upper Tribunal had actually been given.  That conclusion means that there is no foundation for the Upper Tribunal proceedings, for the reasons given in paragraph 7 below. 

7.	I hold that the Upper Tribunal lacks jurisdiction.  Jurisdiction is the technical term for the power conferred by law on a court or tribunal to deal with a case.  I do so for the following reasons. 

(a)	Like any other judge, a judge of the Upper Tribunal has a duty to satisfy himself that he has jurisdiction over any particular case.   That issue should be determined at the outset of his consideration of a case before he goes on to consider the merits, Dallas and Co. v. McArdle 1949 S.C. 481 at p.489-490 per Lord President Cooper.  Further, a judge is obliged to decide the issue of jurisdiction even if the point has not been taken by the parties which is the situation here.  See e.g.  Taylor v. Brick 1982 SLT 25 at p.26.  

(b)	The jurisdiction of the Upper Tribunal is entirely statutory.

(c)	This case was decided by an appeal tribunal on 2 October 2008.  An appeal from that decision lay to the Social Security Commissioner until 2 November 2008.  From 3 November 2008, the functions of the Social Security Commissioneer were transferred to the Upper Tribunal under Article 3(2) of the Transfer of Tribunal Functions Order 2008.  (The functions of the appeal tribunal were similarly transferred to the First tier tribunal under Article 3(1) of that Order).  The claimant’s application for permission to appeal was made on 7 November 2008.  This case is therefore covered by paragraph 4 of schedule 4 to the Order just cited.  Under that paragraph, section 11 of the Tribunals Courts and Enforcement Act 2007 (relating to appeal to the Upper Tribunal) is explicity applied to these proceedings as if the decision of the appeal tribunal had been one made by a First tier tribunal on or after 3 November 2008. 

(d)	Section 11(3) of the Tribunals Courts and Enforcement Act 2007 states that the right to appeal to the Upper Tribunal “may be exercised only with permission” (my italics) Section 11(4) of that Act goes on to provide that “permission may be given by (a) the First tier tribunal or (b) the Upper Tribunal on an application” from a party to a case.  However, rule 21(2) of the Tribunal Procedure (Upper Tribunal) Rules 2008 allows an application to the Upper Tribunal itself for permission to appeal to that tribunal “only if” (my italics) an application for such permission has been made to the First tier tribunal and that application was refused or was not admitted.  An Upper Tribunal judge can only lawfully consider an application for permission to appeal to that tribunal if that rule has been complied with.  Therefore, I lack jurisdiction to decide the merits of this case because no permission to appeal to the Upper Tribunal has been given by the First tier Tribunal.  Further, I  lack jurisdiction to consider giving the claimant permission to appeal to the Upper Tribunal myself because her application for such permission to the First tier tribunal has not yet been considered.  Certainly, it has not been either refused or not admitted.  Technically, the claimant’s appeal to the Upper Tribunal is only a purported one. 

(e)	 The proceedings, narrated in paragraph 6 above, cannot confer jurisdiction upon me.  See Dallas and Co. v. McArdle 1949 S.C. 481 at p.494 per Lord Keith.  A similar situation arose in CSCS/04/2008 where despite proceedings having taken place before the Child Support Commissioner, Mr Commissioner May QC (as he then was) eventually held that he had no jurisdiction over the case.  In reaching my decision, I take the same approach. Whether I have 	jurisdiction rests entirely on the statutory provisions which confer legal authority on the Upper Tribunal to decide cases and whether those provisions have been complied with.  The provisions in question are laid out in sub-paragraph (d) above.

(f)	As pointed out in sub-paragraph (c) above, this case is covered by paragraph 4 of schedule 4 to the Transfer of Tribunal Functions Order 2008.  It is not 	covered by either paragraph 1 or paragraph 2 of that schedule.  Consequently, I  	cannot exercise the power to disapply tribunal procedure rules, for example, rule 	21(2) of the Upper Tribunal rules, which is conferred by paragraph 3(3)(b) of 	that schedule. That is because that power only applies to cases 	which are covered by paragraphs 1 and 2.

8.	My decision may well cause frustration to the claimant and her representative.  However, it is made under the statutory provisions which define and delimit my judicial authority.  I take it more easily because the claimant is not unduly prejudiced. Her application for permission to appeal to the Upper Tribunal, Document 113, has still not been considered, far less decided, by the First tier tribunal under regulation 39 of the Tribunal Procedure (First tier tribunal) (Social Entitlement Chamber) Rules 2008, referred to paragraph 5 above.  I refer the case to the First tier tribunal (Social Entitlement Chamber) for consideration to be given to it under that rule.  That consideration is, in the first instance,  entirely within the discretion of the First tier tribunal.  However, if her application for permission to appeal is refused, the claimant is then free to address it directly to the Upper Tribunal.

9.	The appeal is dismissed.  The Upper Tribunal has no power to determine the merits. 

					(Signed)
					A J GAMBLE
					Judge of the Upper Tribunal 
					Date: 12 February 2009