R (Cart) v Upper Tribunal [2011] UKSC 28; [2012] 1 AC 663

KEY POINTS

• Jurisdiction defines a court's authority to hear and decide cases based on factors like geography and the type of legal issue.

• The Upper Tribunal hears appeals on points of law from the First-tier Tribunal, ensuring consistent legal standards and correcting errors.

  • A tribunal can, like a court of law, issue binding decisions and maintain official records as a superior court of record.

  • When a tribunal refuses permission to appeal to itself, it means the tribunal sees no reasonable prospect of success in the appeal.

  • An unappealable decision cannot be challenged further within the judicial system; it represents the final resolution of a case.

• A decision is susceptible to judicial review if it involves a public body's exercise of public functions and focuses on legality rather than the merits.

• Section 3(5) of the Act outlines the establishment and operation of tribunals, emphasizing impartiality and legally binding decisions.

FACTS

• Rex Cart (“Claimant”) appealed a decision by the Child Support Agency.

  • The Social Security and Child Support Tribunal dismissed the appeal on its merits.

  • A child support commissioner granted the claimant limited grounds for appeal but refused permission on another ground.

  • The Upper Tribunal, having taken over the commissioners' functions under the Tribunals, Courts and Enforcement Act 2007, dismissed the appeal and refused to reopen the other ground.

  • The Claimant sought judicial review of this refusal.

• The Divisional Court held that the Upper Tribunal, as an alter ego of the High Court, was not subject to judicial review unless it acted wholly in excess of its jurisdiction.

• The Court of Appeal agreed, noting that while the Upper Tribunal is not immune from High Court supervision, judicial review cannot correct legal errors made by the tribunal within its decision-making authority.

• The Court of Appeal dismissed the claimant's appeal, upholding the tribunal's right to refuse permission to appeal.

• The Claimant appealed the Home Secretary's decision to refuse him asylum.

  • The First-tier Tribunal dismissed the appeal and denied permission to appeal.

  • The Upper Tribunal also refused permission to appeal.

  • On seeking judicial review, the judge held that the Upper Tribunal's refusal was not subject to judicial review.

  • The judge granted a certificate under section 12(1) of the Administration of Justice Act 1969 for a direct appeal to the Supreme Court.

• Both Claimants appealed their cases.

JUDGEMENT

• The court held that Tribunals, Courts and Enforcement Act 2007 did not explicitly exclude judicial review of the Upper Tribunal's unappealable decisions.

  • The Act's structure did not support varying the scope of judicial review across different jurisdictions.

• Judicial review, a common law mechanism, ensured decisions aligned with the law. It allowed for a second judge, ideally more experienced, to review potential legal errors, as no tribunal or court was infallible.

  • Without judicial review, the Upper Tribunal could have become the final arbiter of the law, even when incorrect, which was not Parliament's intent in enacting the 2007 Act.

  • The court recommended a restrained approach to judicial review, using criteria similar to those for second-tier appeals to the Court of Appeal, to limit errors and maintain independent oversight.

• The court dismissed the appeals, concluding that neither case met the criteria for judicial review of the Upper Tribunal's refusal of permission to appeal.

• The Court of Appeal's and Sullivan LJ's decisions were affirmed on different grounds.

• Per Curiam

  • The Civil Procedure Rule Committee should have streamlined the judicial review process, potentially limiting it to a single paper application unless the court ordered further review.

Baroness Hale of Richmond

• A second judge reviewing for errors should have had more experience or expertise than the initial judge.

• The new system should have avoided non-lawyer members making decisions on legal errors identified by legally qualified judges.

COMMENTARY

• The Supreme Court grappled with the balance between the need for judicial oversight and the practical constraints of judicial resources in this case.

  • The Court's analysis is crucial for understanding how judicial review is applied to decisions made by the Upper Tribunal (UT), particularly those decisions that are not subject to further appeal.

• Judicial review is a process by which courts can examine the legality of decisions made by public bodies, including tribunals.

  • The goal is to ensure that decisions are made according to the law and that they respect principles of fairness and justice.

  • However, when it comes to decisions made by the UT, especially those that are not appealable to a higher court, the scope and extent of judicial review become particularly significant.

• The decision shows the importance of a balanced approach to judicial review.

  • By adopting criteria similar to those used for second-tier appeals, the Court aims to maintain the rule of law while managing limited judicial resources effectively.

  • This case serves as a critical reference point for how judicial review can be structured to address significant legal issues without being overwhelmed by less consequential claims.

• Understanding this case helps legal professionals and scholars appreciate the nuanced approach to judicial review and the ongoing efforts to ensure that judicial oversight remains both effective and efficient.