JM vs Social Security Scotland - Appeal Refused

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  JM against Social Security Scotland (Upper Tribunal - Social Security Chamber) [2026] UT 41 (24 March 2026)

URL: https://www.bailii.org/scot/cases/ScotUT/2026/2026ut41.html
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[2026] UT 41 | | |
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1 2026UT41 Ref: UTS/AS/25/0162 DETERMINATION **** by **** Sheriff SG Collins KC **** **** **** IN THE CASE OF JM Appellant - and - Social Security Scotland Respondent FTS Case Reference: FTS/SSC/AE/24/03551 24 March 2026 Decision The request for an extension of time is refused. The notice of appeal is not admitted. ** Background 1. From 22 August 2023 the appellant was found entitled to the standard rates of the daily living and mobility components of Adult Disability Payment. His application for enhanced rates of benefit was refused by Social Security Scotland following a re-determination decision of 22 June 2024. 2 2. The appellant appealed to the First-tier Tribunal for Scotland ("FTS"). The appeal was heard on 18 February 2025, and was refused. Accordingly the appellant remained entitled to the standard rates of the daily living and mobility components. This award will be reviewed on 22 August 2026. 3. A summary decision notice was issued by the FTS dated 20 February 2025. At the end of the notice information was given about appeal rights and time limits. A full statement of reasons was sought, and this was issued by the FTS on 16 April 2025. Again, information was given regarding appeal rights and time limits. The appellant sought permission to appeal from the FTS to the Upper Tribunal for Scotland ("UTS"). Permission was refused by the FTS by determination dated and sent on 4 July 2025. For a third time the appellant was provided with written information regarding appeal rights and time limits. 4. On 4 December 2025 the UTS received an application from the appellant's representatives for permission to appeal the FTS decision. The appellant requested an extension of the time limit for submitting his appeal. His reasons for so doing were as follows: "The advisor who originally assisted [the appellant] left her role... around the time that leave to appeal to the UT was refused. The situation has been further complicated by the fact that [the representative organisation] has been undergoing a fundamental, organisational restructure in recent months with all staff being redeployed to new posts and allocated new duties. In the consequent confusion [the appellant's] case was overlooked. The delay... was beyond [the appellant's] control..." In an email accompanying the application it is also said that the appellant "attempted to progress this matter with his [named] previous representative several times, but, unfortunately, she had already moved to a different post and [his] emails to her were missed." 5. The grounds of appeal on which the appellant sought permission to appeal from the FTS were that it had erred by (i) failing to properly apply the assessment criteria in relation to daily living component descriptor 1E and mobility descriptor 1E; (ii) failing to properly exercise its inquisitorial function in relation to two matters (a) an undated letter from the appellant's mother, and (b) mobility descriptors 1D and 1F (which had not been put in issue by the appellant's representative); and (iii) improperly drawing inferences from generalised and unsubstantiated assumptions, as regards (a) assessment of the appellant's back pain, and (b) the significance of exercises issued to the appellant. 3 6. In his application to the UTS the appellant stated additional proposed grounds of appeal, namely that (i) the FTS erred in fact in relation to his medical condition in the light of his medical records; and (ii) that Social Security Scotland had unlawfully and unethically obtained and put before the FTS medical evidence obtained from a GP other than the GP which the appellant had given them permission to contact. Discussion 7. An application for permission to appeal from the FTS to the UTS must be received by the UTS within the period of 30 days beginning with the date on which notice of the FTS refusal of permission to appeal was sent to the appellant: Scottish Tribunals (Time Limits) Regulations 2016, rule 3(1). The UTS may extend the period beyond 30 days if it considers such an extension to be in the interests of justice: rule 3(3). If an application is not lodged timeously it must include a request for an extension of time, explain why the application was not made in time, and state why it is said to be in the interests of justice that time be extended: Upper Tribunal (Social Security Rules of Procedure) Regulations 2018, rule 3(4)(a). 8. As is emphasised in Jacobs, Tribunal Practice and Procedure (5th Edition, 2019) at paragraph 7.82, time limits are important, for the efficient organisation of the tribunal system generally, for the tribunal which deals with the case, and for the parties, so as to ensure certainty and finality. This is not a pernickety approach: the successful party is entitled to assume, once a time limit is up, that the decision will not be challenged and can be enforced and acted upon. Accordingly if the unsuccessful party seeks an extension of time to appeal, and an exercise of judicial discretion in their favour in this regard, there is a practical burden on them to provide information and material sufficient to satisfy the UTS that it is in the interests of justice to do so. 9. In considering an application for extension of time to appeal to the UTS regard should be had to all the relevant circumstances. These include (i) the length of the delay in seeking permission to appeal; (ii) the reasons put forward for the delay; (iii) the consequences of the delay; (iv) the merits of the case; (v) whether the appellant has an alternative remedy; and (vi) the extent to which if at all the appellant's health or personal circumstances may have contributed to the delay. The fact that delay may have been attributable to the fault of the appellant's representative, and so that she may have a potential claim against them, is not decisive for or against the appellant: cf. R(YT) v First-Tier Tribunal and Criminal Injuries Compensation Authority [2013] UKUT 201 (AAC). 10. In the present case the FTS decision refusing permission to appeal was sent on 4 July 2025. Therefore the 30 day period for seeking permission to appeal from the UTS specified in rule 4 3(1) of the 2016 Rules expired no later than 4 August 2025. Yet the appellant's notice of appeal was not received by the UTS until 4 December 2025, four months later, thus a delay of more than four times the prescribed period. In the context of the 2016 and 2018 Rules, and the history of the appellant's claim and appeal, this was a lengthy and significant delay. 11. It is said that the delay was due to the appellant's case being overlooked' by his representatives due to staff and organisational changes. It is argued that the delay was thereforebeyond the appellant's control', and that he was not culpable' for it. But this does not follow. The appellant was himself told three times - in written documents issued by the FTS - of the time limit for seeking permission to appeal. He knew or ought to have known that permission to the UTS should have been sought by 4 August 2025. He is not absolved of responsibility for doing this if it was or ought to have been apparent to him that his representatives were failing to do so. It is said that the appellant sent emails to his former representativeseeking to progress matters'. These have not been produced and it is therefore unclear what they said, when they were sent, or whether any reply was received. But either the appellant must have known that no application for permission had been timeously lodged, or he did not take action sufficient to find out. This would not have been unduly difficult ? he could have contacted another member of staff in the representative organisation, or the UTS itself, or sought alternative representation. In the circumstances the information available does not sufficiently explain nor justify the very lengthy delay in seeking permission. 12. The consequence of refusing to extend the time limit for appeal to the UTS will be that the appellant will not be able to appeal the FTS decision of 20 February 2025. The effect of this will not be that he is left without benefit, but rather that he will remain on the standard rather than the enhanced rates. However this entitlement will shortly be reviewed, in August of this year, and he will have fresh appeal rights against the decision made at that time. 13. The proposed grounds of appeal which the appellant put before the FTT appear weak. Although much effort has been made to present the appellant's complaints as errors of law, in substance they appear to amount to disagreements with the FTS' assessment of the facts, and their evaluation of the nature and extent of the appellant's functional disabilities relative to the various descriptors put in issue. As to the further proposed grounds put before the UTS, there is at least a question whether it would have entertained them at all, given that they were not put to the FTS. But in any event the first new proposed ground of appeal again appears in substance to amount to a disagreement on matters of fact, while the second appears collateral to the issues, and not likely to give rise to a finding of material error of law on the part of the FTS. 5 14. If it be the case that the delay in lodging the application for permission to appeal is solely due to fault or negligence on the part of the appellant's representatives and for which he cannot be held responsible, then he has at least cause for complaint. It is also possible that he may have some remedy against them, but again there is insufficient information before me to establish this. 15. The appellant has health issues, including mental health issues, and was treated as a vulnerable witness by the FTS. Despite his vulnerabilities, he has been able to engage with Social Security Scotland and in the appeal process. He is clearly intelligent; the FTS noted that he had achieved a first class accountancy degree in 2013. He did not seek nor score points for daily living descriptors 7 (communicating verbally), 8 (reading and understanding), 9 (engaging socially) or 10 (making budgeting decisions). He was able to engage with his representatives, and should have been aware of what they were doing on his behalf ? or failing to do. There is nothing before me sufficient to establish that the delay in applying for permission to appeal in this case was materially impacted by the appellant's state of health. Conclusion 16. For all these reasons I am not satisfied that it is in the interests of justice to grant the extension of time requested. In making this decision, I have had regard to the overriding objective set out in rule 2 of the 2018 Rules, namely to deal with the case fairly and justly, by reference to the factors specified there. These include proportionality and the avoidance of delay. 17. Under Rule 3(4)(b) of the 2018 Rules, unless the UTS extends the time for lodging an application for permission to appeal, the UTS must not admit the notice of appeal. The appellant's notice of appeal is therefore not admitted to the UTS. 18. There is no right to seek review or appeal of this decision: Tribunals (Scotland) Act 2014, section 48(5) and 55(2). Sheriff SG Collins KC Member of the Upper Tribunal for Scotland

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URL: https://www.bailii.org/scot/cases/ScotUT/2026/2026ut41.html