Supreme Court sets out grounds for JR of 'unappealable' Upper Tribunal decisions

The Supreme Court has issued a key ruling on the scope for judicial review by the High Court or the Court of Session in Scotland of unappealable decisions of the Upper Tribunal.

The Upper Tribunal was established by the Tribunals, Courts and Enforcement Act 2007, which established a new unified tribunal structure.

Under the 2007 Act, there is a right of appeal to the Court of Appeal or the Court of Session “on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision”. Excluded decisions include any decision of the Upper Tribunal on an application for permission or leave to appeal.

The Supreme Court considered three different cases, two in England and one in Scotland. The English cases, Cart v The Upper Tribunal (Rev 1) [2011] UKSC 28 and MR (Pakistan) v Upper Tribunal, respectively involved failed appeals to the Social Security and Child Support Tribunal to vary the level of child maintenance and to the Immigration and Asylum Chamber of the First-tier Tribunal over the refusal of an application for asylum.

The case in Scotland, Eba v Advocate General for Scotland [2011] UKSC 29, related to a claim for disability living allowance that had been dismissed by the First-tier Social Entitlement Chamber.

In all three cases the claimant was refused permission to appeal to the Upper Tribunal against that decision both by the First-tier Tribunal and by the Upper Tribunal. In each case the claimant sought a judicial review of the refusal of permission to appeal by the Upper Tribunal.

The Supreme Court unanimously dismissed the appeals but on a different basis from that adopted in the Divisional Court and the Court of Appeal. It was agreed that at issue was the level of independent scrutiny outside the tribunal structure required by the rule of law.

Giving the lead judgment in the two English cases, Lady Hale said there were three possible approaches the court could take:

1. It could accept the view of the courts below that the new system was such that the scope of judicial review should be restricted to pre-Anisminic excess of jurisdiction and the denial of fundamental justice (and possibly other exceptional circumstances such as those identified in Sinclair Gardens).
2. It could accept the argument that nothing has changed. Judicial review of refusals of leave to appeal from one tribunal tier to another had always been available and with salutary results for the systems of law in question. Under this option unrestricted judicial review would be available.
3. It could adopt a course which was somewhere between those two options, namely that judicial review in these cases should be limited to the grounds upon which permission to make a second-tier appeal to the Court of Appeal would be granted. These grounds are that (a) the proposed appeal would raise some important point of principle or practice, or (b) there is some other compelling reason for the court to hear the appeal.

Lady Hale said that while the introduction of the new system under the 2007 Act might justify a more restricted approach, the “exceptional circumstances” approach was too narrow, “leaving the possibility that serious errors of law affecting large numbers of people will go uncorrected”.

In relation to the option for unrestricted judicial review, the judge said the courts’ resources were not unlimited and that it was well known that the High Court and the Court of Appeal had been overwhelmed with judicial review applications in immigration and asylum cases until the introduction of statutory reviews.

“The mere fact that something has been taken for granted without causing practical problems in the social security context until now does not mean that it should be taken for granted forever,” Lady Hale said. “Equally the fact that the courts have hitherto found it difficult to deter repeated or unmeritorious applications in immigration and asylum cases does not mean that such applications should become virtually impossible. There must be a principled but proportionate approach.”

The judge said that the adoption of the second-tier appeals criteria would be a rational and proportionate restriction upon the availability of judicial review of the refusal by the Upper Tribunal of permission to appeal to itself.

“It would recognise that the new and in many ways enhanced tribunal structure deserves a more restrained approach to judicial review than has previously been the case, while ensuring that important errors can still be corrected,” Lady Hale explained.

“It is a test which the courts are now very used to applying. It is capable of encompassing both the important point of principle affecting large numbers of similar claims and the compelling reasons presented by the extremity of the consequences for the individual. It follows that the approach in Sinclair Gardens should no longer be followed.”

The Supreme Court ruled that there was nothing in the two English cases to bring them within the second-tier appeal criteria.

Giving the lead judgment in the Eba case, Lord Hope said two factors already established in Scots law supported the conclusion that Scots law should now align itself with the position in English law outlined by the Supreme Court in the Cart and MR appeals.

The first was that the court should be slow to interfere with decisions that lie within the expertise of the specialist tribunals. The second was that the limitation on the scope for second appeals in the 2007 Act had been reproduced in the Rules of the Court of Session and it would be inconsistent with the intention behind that rule for the court to provide a wider opportunity for the decisions of the Upper Tribunal to refuse permission to appeal to itself to be reconsidered by way of judicial review.

Philip Hoult