IN THE UPPER TRIBUNAL Appeal No.

GIA/47/2018
ADMINISTRATIVE APPEALS CHAMBER

THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008

Name: Mr l\__~ ~mTo.n-----

Tribunal: First-Tier Tribunal (Social Security and Child Support)
Tribunal Case No: EA/20 17/0062
Tribunal Venue: Fleetbank House London
Hearing Date: 4 September 2017

NOTICE OF DETERMINATION OF
APPLICATION FOR PERMISSION TO APPEAL

I extend time so far as is necessary for the making of this renewed application for
permission to appeal.

The application to the First-tier Tribunal for permission to appeal to the Upper Tribunal
was made late and was not admitted by the First-tier Tribunal.

I admit this application for permission to appeal to the Upper Tribunal for consideration
because I am satisfied that it is in the interests of justice to do so.

However, I refuse permission to appeal.

This determination is made under section 11 of the Tribunals, Courts and Enforcement Act 2007 and
rules 2, 5, 21 & 22 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

REASONS

The late application to the First-tier Tribunal for permission to appeal to the Upper Tribunal
1. The relevant procedural history is as follows:

20 October 2017 First-tier Tribunal (FTT) promulgates dismissed appeal

17 November 2017 (at 23:57) Appellant applies FTT for permission to appeal (PTA)
20 November 2017 FTT Judge refuses to admit late application
24 November 2017 FTT office issues ruling of 20.11.2017
25 November 2017 Appellant reapplies for PTA asking for extension of time (EOT)
29 November 2017 FTT Judge refuses to admit late application as no reasons
given for EOT application
1 December 2017 (at 09.33) FTT office issues ruling of 29.11.2017 as "permission refused"
1 December 2017 (at 10:33) Appellant re-sends 25.11.2017 application with EOT reasons
22 December 2017 Appellant sends FTT office follow-up enquiry
2 January 2018 FTT office replies stating no reply received from Judge to date
2 January 2018 Appellant applies to Upper Tribunal for permission to appeal
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2. So Mr (.,.ale how applies for permission to appeal by application direct to the Upper
Tribunal, his application to the First-tier Tribunal (FTT) having been (i) refused as late (on
20.11.2017, issued on 24.10.2017) and then (ii) refused a second time as no reasons given
for lateness (on 29.11.2017, issued on 01.12.2017).

Some initial comments on the mistakes that were made

3. A consideration of that process reveals that Mr ()" ..t made at least two mistakes.

4. First, he presumably knew that he had 28 days in which to lodge his appeal against the
FTT's decision (see rule 42(2) Tribunal Procedure (First-tier Tribunal) (General Regulatory
Chamber) Rules 2009 (SI 2009/1976) as amended). His 28 days from 20 October ran out on
17 November. He thought he had got in just in time by filing at 23:57 on that last day. His first
mistake was that time actually ran out at 5 pm - see rule 12(1). So he was nearly 7 hours late
and the Tribunal made a ruling refusing to admit the late application.

5. Second, although he asked for an extension of time on 25 November he failed to attach

the document giving his reasons. He did not do so until 10:33 on 1 December, by which time
he had already been sent a further Tribunal ruling of "permission refused".

6. However, it is possible the FTT may also have made a mistake as well. The first FTT ruling
refused to admit the application as being out of time and so late. That was surely a ruling which
disposed of the proceedings. They were now at an end. So it is arguable that at that point the
FTT became "functus", Le. all proceedings in the matter were at an end and the FTT had no
further functions to perform. However, the FTT then proceeded to consider Mr Gi'" "s second
application for PTA. On what basis was it doing so? Arguably the FTT could have looked at
the second application, but only if it had first set aside the ruling issued on 24 November. There
is no evidence it did so or even thought about doing so.

The relevant Upper Tribunal Rules

7. The procedure in the Upper Tribunal is governed by the Tribunal Procedure (Upper
Tribunal) Rules 2008 (SI 2008/2698). There are two separate provisions which need to be
considered.

8. First, rule 21 (3)(b) of the Tribunal Procedure (Upper Tribunal) Rules deals with the time
limit for applying to the Upper Tribunal. An applicant has one month from the date the FTT
"sent notice of its refusal of permission to appeal, or refusal to admit the application for
permission to appeal, to the appellant".

9. Second, a further special rule applies where the FTT has refused to admit an application
for PTA as late. Rule 21 (7) states as follows:

"(7) If the appellant makes an application to the Upper Tribunal for permission to appeal against
the decision of another tribunal, and that other tribunal refused to admit the appellant's
application for permission to appeal because the application for permission or for a written
statement of reasons was not made in time-
(a) the application to the Upper Tribunal for permission to appeal must include the
reason why the application to the other tribunal for permission to appeal or for a
written statement of reasons, as the case may be, was not made in time; and
(b) the Upper Tribunal must only admit the application if the Upper Tribunal considers
that it is in the interests of justice for it to do so."

Applying those rules in the present case

10. First I must consider rule 21 (3)(b). The FTT's second ruling was issued on 1 December
and the Appellant lodged his application with the Upper Tribunal on 2 January. However 1
January (obviously) is a public holiday and a non-working day for the purposes of the Rules

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(see rule 12(2)). So an application made in time following the ruling issued on 1 December is
in time.

11. However, that assumes the FTT's second ruling was a valid ruling. I am not at all sure it
was valid, for the reasons set out above at paragraph 6. If that is right, then the Appellant's
one month ran from the date of issue of the first ruling on 24 November. That being so, the
application is strictly about a week late.

12. However, it seems to me that it would be unjust to take such a strict view. Having received
two successive rulings from the FTT, I consider it was reasonable for the Appellant to assume
that he had one month from the date of the second ruling being issued to make his renewed
PTA application to the Upper Tribunal.

13. Insofar as it is necessary for me to do so, I therefore extend time so as to admit the
application for permission to the Upper Tribunal as in time.

14. Second, I must then go on to consider rule 21 (7). That requirement has two limbs.

15. As regards the requirement in rule 21 (7)(a), i.e. why the original application to the FTT
was late, the Appellant has explained that he was unaware of the 5 p.m. rule in GRC rule 12
and in any event was only a few hours late. He adds that the Tribunal's standard notification
letter of 20 October 2017 only refers to the 28 day rule and not the 5 p.m. rule. He says the
same is true of the FTT guidance notes on the web.

16. It is true, of course, that ignorance of the law is no excuse. There is, moreover, no
automatic right to an extension of time. Case law shows that the onus is on the Applicant to
show why the late application should be admitted. Finality in litigation is an important social
good and time limits are there for a purpose to be observed. The length of the delay is an
important consideration. This weighs considerably in the Applicant's favour, as the delay is just
a matter of a few hours and so in one sense at the margins. I must also take into account the
explanation or reason for the delay.

17. In Jurkowska v Hlmad Ltd [2008] ICR 841 the Court of Appeal upheld a judge's decision
to grant a very modest extension of time in circumstances where the party concerned had left
matters to half an hour after the relevant deadline (in the context of a 42 day time limit).
According to Rimer LJ "The judge knew that it was so left [to the last day], and an appellant is
fully entitled to take the full 42 days for instituting his appeal. He of course runs a risk in doing
so, because things can go wrong at the last minute. But the judge in terms decided ... that this
was a case for a discretionary extension even though everything had been left to the last day.
In my view he was entitled so to decide" (at [48]). In the same case Sedley LJ posed the
question as follows: was there "a good and acceptable excuse for missing it" (at [69]).

18. I recognise that the Appellant is a litigant in person. On balance, not least given that the
official communications he received did not draw his attention to the 5 p.m. rule, I consider that
he could have been forgiven for thinking he had until the midnight hour on the last day to make
his application.

19. Under rule 21 (7)(b), I also have to be satisfied that it is in the interests of justice to admit
the application for consideration. On balance I accept that this threshold is met. I say that
simply because the sequence of events as they happened in the FTT mean that the Appellant
has not had a Judge undertake a substantive consideration of his application for permission to
appeal. Rather, he has had two applications knocked out on time grounds (and the second of
those rulings very arguably having been made when the FTT itself had no jurisdiction so to
act).

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20. I accordingly admit the application for consideration on its merits.

The application for permission to appeal to the Upper Tribunal: some general points
21. However, even though the application is admitted for consideration, I must stress the right
of appeal to the Upper Tribunal from a decision of the FTT is only on a point of law and not on
issues of fact. This means that the right of appeal is not an opportunity to challenge the facts
as found by the FTT or simply to disagree with the outcome. Some arguable error of law by
the FTT must be disclosed before permission to appeal is granted. For example, that might be
where the tribunal has applied the wrong law or has applied the right law but in an incorrect
way.

22. This is because an appeal to the Upper Tribunal lies on "any point of law arising from a
decision" (section 11(1) of the Tribunals, Courts and Enforcement Act 2007). The Upper
Tribunal will give permission to appeal only if there is a realistic prospect of an appeal
succeeding, unless there is exceptionally some other good reason to do so: Lord Woolf MR in
Smith v Cos worth Casting Processes Ltd [1997] 1 WLR 1538.

23. So if it is arguable the FTT got the law wrong, then there is a right of appeal. However,
simply disagreeing with the FTT's conclusions on particular facts, or even with the overall
outcome, is not itself a point of law - however unreasonable the Appellant may think the
Tribunal's decision was. The assessment of the evidence is a classic issue of fact for the FTT.

The application for permission to appeal to the Upper Tribunal: this application
24. The Applicant's proposed grounds of appeal have been set out with some care. That said,
in essence they really amount to no more than an attempt to re-argue the case on its facts.
The First-tier Tribunal directed itself properly on the relevant law under section 14 of the
Freedom of Information Act 2000, in particular the Dransfield case in the Upper Tribunal (and
Court of Appeal). The suggestion that the FTT made the fundamental error of finding the
requester to be vexatious, rather than the request, simply does not stand up to scrutiny.

25. Likewise the claim of bias has no real basis. The test is laid down by the decision in Porter
v McGiII [2002] 2 AC 357. There is simply nothing in the present case to suggest that the fair-
minded and informed observer would consider there was any issue of bias here. Just because
the outcome of the appeal is not one that the Applicant has convinced himself is the right result
does not mean either that the hearing was unfair or that the FTT itself (or any of the members)
was biased. As Mr Justice Rimer once said, this type of argument is in essence "no more than
the deployment of the fallacious proposition that (i) I ought to have won; (i) I lost; (ii) therefore
the tribunal was biased" (see London Borough of Hackney v Sagnia [UKEAT0600/03, 0135/04,
6 October 2005] at paragraph [63]). This point is, quite simply, unarguable.

26. In sum the FTT succinctly summarised the context, the prior history and the requests in
question - paragraphs 1-5. The FTT went on to outline the competing cases put by the
Commissioner and the Appellant - paragraphs 9-11. The FTT then explained its findings and
conclusion (paragraph 12). The evaluation of the evidence is ultimately an issue of fact for the
first instance Tribunal. As noted, the Applicant in reality is seeking to re-argue the case on its
merits, which is not permissible where the right of appeal is confined to points of law. My
assessment is thus that any appeal to the Upper Tribunal realistically has no prospects of
success on any material point of law.

Conclusion
27. Accordingly my decision is as follows. I extend time to admit the late application for
permission to appeal, if necessary (rules 2,5 and 21 (3)(b)). Although the application was made
late to the FTT, I also admit the application for permission to appeal to the Upper Tribunal for
consideration because I am satisfied that it is in the interests of justice to do so (rule 21 (7)).
However, having considered the application on its merits, I refuse permission to appeal.

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28. The Applicant has the right to apply for a reconsideration of this determination at an oral
hearing before the Upper Tribunal, which as a matter of convention would be in front of a
different judge. Any such application must be made in writing and within 14 days of the date
that this determination is sent out by the Upper Tribunal office (Le. the date on the enclosed
covering letter, not the date below) - see Tribunal Procedure (Upper Tribunal) Rules 2008,
rule 22(3)-(5).

29. Any such renewal hearing is normally held at a central London tribunal venue. Hearings
can be arranged for 2 p.m. for those travelling from out of town. Alternatively the Upper Tribunal
sits for time to time at regional centres. The nearest such venue to the Appellant's home
address is Leeds.

Postscript
30. There are three matters which I consider should be drawn to the attention of the Principal
Judge or Chamber President of the GRC for their consideration. They may wish to discuss
these matters with their administrative colleagues in HMCTS.

31. The first concerns what I have described as the 5 p.m. rule. Some tribunals adopt a
relatively relaxed view about time limits, whereas others are more rigorous. If the latter
approach is taken, then it is arguable that greater prominence should be given to the import of
GRC rule 12(1) (e.g. in letters notifying decisions or in general guidance on the web). This may
be especially so in a jurisdiction where there are many litigants in person. I recognise, however,
that there is a limit to the amount of information that can sensibly be conveyed without
"overload" in e.g. standard letters.

32. The second concerns the standard FTT office letter sent with the heading "Permission to
appeal ruling: permission refused" (e.g. as e-mailedtoMr(___.on1December2017).This
may be undue pedantry on my part, but technically the application for permission to appeal
was not refused but rather was not admitted, as being late. The ultimate effect of that was
certainly that it was refused. However, not being admitted in the first place has other
consequences (e.g. as regards rule 21 (7) in the Upper Tribunal) so it may be that a modified
wording might be more appropriate. Again, I recognise the risk of "overload" in e.g. standard
letters.

33. The third point is unrelated. In his ruling of 29 November 2017 the FTT Judge ruled (para
6) that the requirements of GRC rule 42(4)(e) were not met. This relates to the GRC equivalent
to rule 21 (7) in the Upper Tribunal. The correct reference should be to rule 42(4)(b). At first I
assumed this was a typographical error. However, the version of the GRC Rules on official
websites only has subparagraphs (d) and (e) in rule 42(4) (with no (a), (b) or (c)). Likewise rule
42(5) comprises only 42(5)(f), (g) and (h). Those rules should read as follows (in the Westlaw
version):

(4) If the person seeking permission to appeal sends or delivers the application to the Tribunal later
than the time required by paragraph (2) or by any extension of time under rule 5(3)(a) (power to
extend time)-
(a) the application must include a request for an extension of time and the reason why the
application was not provided in time; and
(b) unless the Tribunal extends time for the application under rule 5(3)(a) (power to extend time)
the Tribunal must not admit the application.
(5) An application under paragraph (1) must-
(a) identify the decision of the Tribunal to which it relates;
(b) identify the alleged error or errors of law in the decision; and
(c) state the result the party making the application is seeking.

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34. Thus the version on the official website has plainly suffered a formatting problem which
needs correcting.

(Signed on the original)

Nicholas Wikeley
Judge of the Upper Tribunal

(Dated) 12 January 2018